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STATE OF |
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BEFORE THE INDIANA
DEPARTMENT |
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COMMISSIONER OF THE
DEPARTMENT Complainant, v. TIM PURCELL d/b/a PURCELL AUTO PARTS, Respondent. |
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AGREED ORDER
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.
I.
FINDINGS OF FACT
1. Complainant
is the Commissioner (“Complainant”) of the Indiana Department of Environmental
Management, a department of the State of
2. Respondent
is Tim Purcell d/b/a Purcell Auto Parts ("Respondent"), which owns
and/or operates the company located at
3. The
4. Pursuant
to IC 13-30-3-3, IDEM issued a Notice of Violation via Certified Mail to:
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Tim
Purcell, Owner |
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Tim
Purcell d/b/a Purcell Auto Parts |
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5. Respondent
owns and operates an auto salvage yard and processes scrap metal. Respondent processed about 150 vehicles last
year. At the time of the inspection,
Respondent was storing over 1,000 waste tires on-site.
6. An
inspection on April 17, 2006 was conducted at the Site by a representative of
IDEM’s Office of Land Quality (“OLQ”).
The following violations were in existence or observed at the time of
this inspection:
a. Pursuant
to 329 IAC 13-4-3(d), generators must label all used oil containers and aboveground
tanks with the words “Used Oil.”
Respondent did not label four (4) used oil containers with the words
“Used Oil.”
b. Pursuant
to 327 IAC 15, a person who has a point source discharge of storm water associated
with industrial activity and meets the general and applicability requirements
of 327 IAC 15-2-2(a)(1), 15-2-3, and 15-6-2, must comply with, among other
things, the requirements of 327 IAC 15-2-5, 15-6-5, 15-6-7, 15-6-7.3, and
15-6-7.5. Point source discharges of
storm water associated with industrial activity have occurred at the Site, and Respondent’s
industrial activity meets the general and applicability requirements of 327 IAC
15-2-2(a)(1), 15-2-3, and 15-6-2, but Respondent had not complied with the
requirements of 327 IAC 15-6-7, 15-6-7.3, and 15-6-7.5
c. Pursuant
to 327 IAC 15-6-2(a)(5)(E), the requirements of this rule apply to all facilities
involved in the recycling of materials, including metal scrap yards, battery
reclaimers, salvage yards, and automobile junkyards, including those classified
under the following SIC codes:
(i) 5015
(motor vehicle parts, used), and
(ii) 5093 (scrap and waste materials).
Respondent failed to comply with the requirements of 327 IAC 15-6, including,
but not limited to, the following:
(a) Failure
to develop, implement, update, and maintain a Storm Water Pollution Prevention
Plan as required by 327 IAC 15-6-7.
(b) Failure to monitor as required by 327 IAC
15-6-7.3.
(c) Failure
to submit an annual report to the commissioner as required by 327 IAC 15-6-7.5.
d. Pursuant
to 329 IAC 15-3-2, the owner or operator 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. Respondent
stored at least one thousand waste tires outside 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.
e. 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. Respondent caused and/or allowed solid waste,
waste tires, automotive fluid, oil, and fuel, to be stored and/or disposed at
the Site in a manner that creates a threat to human health or the environment
in violation of 329 IAC 10-4-2.
f. Pursuant
to IC 13-20-13-1.5(1) & (3), a person that stores waste tires shall do so in a manner that does not pose a
threat to human health or the environment, and controls vectors that pose a
threat to human health. Respondent
failed to take actions to prevent the breeding and control of vectors, and mosquitoes,
that pose a threat to human health.
g. Pursuant
to IC 13-30-2-1(14), no person shall apply or allow the application of used oil
to any ground surface. Respondent
allowed the application of used oil to the ground surface. Oil sheen was observed on ponds of water at the
Site.
h. Pursuant
to IC 13-30-2-1(5), no person shall dump or cause or allow the open dumping of garbage
or any other solid waste in violation of 329 IAC 10-4-2 and 329 IAC 10-4-3. Respondent
caused and/or allowed waste tires, automotive fluid, oil, fuel, and other solid
wastes to be open dumped at the Site.
i. Pursuant
to 329 IAC 10-4-3, open dumping and open dumps, as those terms are defined in
IC 13-11-2-146 and IC 13-11-2-147, are prohibited. Respondent caused and/or allowed waste tires,
automotive fluids, oil, fuel, and other solid wastes, to be open dumped at the
Site.
7. 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 the Complainant or his delegate, and has been received by the
Respondent. This Agreed Order shall have
no force or effect until the Effective Date.
2. Upon
the Effective Date of this Order, Respondent shall comply with 329 IAC
13-4-3(d). Specifically, Respondent
shall ensure that all containers of used oil are labeled with the words “Used
Oil.”
3. Within
thirty (30) days of the Effective Date of this Agreed Order, Respondent shall
comply with IC 13-30-2-1(3).
Specifically, Respondent shall remove all tires from the Site and
dispose of them at a permitted solid waste management facility.
4. Within
forty-five (45) days of the Effective Date of this Agreed Order, Respondent
shall submit written documentation that the 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 the requirements of Order
paragraph 2 above is done in compliance with all applicable federal, state, and
local laws and regulations.
6. Within
thirty (30) days of the Effective Date of this Agreed Order, Respondent shall
comply with IC 13-30-2-1(5).
Specifically, Respondent shall remove all solid waste and garbage from
the site and dispose of it properly.
7. Within
thirty (30) days of the Effective Date of this Agreed Order, Respondent shall
comply with IC 13-30-2-1(3), (4) and (5).
Specifically, Respondent shall clean up all releases evident by soil
staining by excavating the soil six inches beyond visible contamination:
8. Within
forty-five (45) days of the Effective Date of this Agreed Order, Respondent
shall submit to IDEM documentation that releases in the above areas have been
cleaned up.
9. Within
thirty (30) days of the Effective Date of this Agreed Order, Respondent shall
comply with 327 IAC 15-2-5(a) and submit an NOI letter, which complies with all
of the requirements of 327 IAC 15-3 and 327 IAC 15-6-5, to IDEM.
10. In the
event IDEM determines that the NOI letter submitted by Respondent is deficient
or otherwise unacceptable, Respondent shall revise and resubmit the NOI to IDEM
in accordance with IDEM’s notice.
11. Within
ninety (90) days of the Effective Date of this Agreed Order, Respondent shall
conduct monitoring as required by 327 IAC 15-6-7.3.
12. Within
thirty (30) days after laboratory analyses conducted pursuant to Order
paragraph 11 have been completed, Respondent shall submit sampling data results
to IDEM for review. Respondent shall
also, in accordance with 327 IAC 15-6-7(b)(9), include the sampling data
results in the Storm Water Pollution Prevention Plan required by Order
paragraph 13.
13. Within
one hundred and eighty (180) days of the Effective Date of this Agreed Order,
Respondent shall comply with 327 IAC 15-6-7.
Specifically, Respondent shall develop and submit to IDEM for approval a
Storm Water Pollution Prevention Plan.
14. Within
ten (10) days of notice of IDEM’s approval of the Storm Water Pollution
Prevention Plan, Respondent shall implement the plan as approved.
15. In the
event IDEM determines that any plan submitted by Respondent is deficient or
otherwise unacceptable, Respondent shall revise and resubmit the plan to IDEM
in accordance with IDEM's notice. After
three (3) submissions of such plan by Respondent, IDEM may modify and approve
any such plan and Respondent must implement the plan as modified by IDEM. The approved plan shall be incorporated into
this Agreed Order and shall be deemed an enforceable part thereof.
16. Within
three hundred and ninety-five (395) days of the Effective Date of this Agreed Order,
Respondent shall submit an Annual Report in accordance with 327 IAC 15-6-7.5
17. All
submittals required by this Agreed Order, unless notified otherwise in writing,
shall be sent to:
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Deirdre
Wyatt, Enforcement Case Manager |
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Indiana
Department of Environmental Management |
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Office
of Enforcement Mail Code
60-02 |
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18. In the
event the terms and conditions of the following paragraphs are violated, the
Complainant may assess and the Respondent shall pay a stipulated penalty in the
following amount:
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Violation |
Penalty |
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Failure
to comply with Order paragraph 4 |
$250
per week |
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Failure
to comply with Order paragraph 6 |
$250
per week |
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Failure
to comply with Order paragraph 8 |
$250
per week |
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Failure
to comply with Order paragraph 9 |
$250
per week |
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Failure
to comply with Order paragraph 10 |
$250
per week |
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Failure
to comply with Order paragraph 11 |
$250
per week |
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Failure
to comply with Order paragraph 12 |
$250
per week |
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Failure
to comply with Order paragraph 13 |
$250
per week |
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Failure
to comply with Order paragraph 14 |
$250
per week |
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Failure
to comply with Order paragraph 15 |
$250
per week |
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Failure
to comply with Order paragraph 16 |
$250
per week |
19. 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 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.
20. 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:
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Indiana
Department of Environmental Management |
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Cashier’s
Office Mail Code 50-10C |
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21. This
Agreed Order shall apply to and be binding upon the Respondent, its successors
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.
22. In the
event that any terms of the 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.
23. Notwithstanding
any other provision of this Agreed Order, the Complainant reserves, and this
Agreed Order is without prejudice to, the right to institute proceedings in
this action or in a new action for injunctive relief, costs, civil penalty
and/or remediation of environmental contamination that is either discovered
after the entry into the Agreed Order or that has not been adequately remedied
despite compliance by Respondent with the terms of this Agreed Order.
24. 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.
25. This
Agreed Order shall remain in effect until IDEM issues a Resolution of Case
letter to Respondent.
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TECHNICAL RECOMMENDATION: |
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RESPONDENT: |
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Department of Environmental Management |
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By: |
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By: |
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Nancy L. Johnston, Cheif |
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Hazardous Waste Section |
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Office of Enforcement |
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COUNSEL FOR COMPLAINANT: |
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COUNSEL FOR RESPONDENT: |
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Department of Environmental Management |
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Office of Legal Counsel |
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Date: |
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APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF
ENVIRONMENTAL |
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MANAGEMENT THIS |
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DAY
OF |
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, 2006. |
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For The Commissioner: |
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Signed on October 5, 2006 |
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Matthew T. Klein |
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Assistant Commissioner |
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of Compliance and Enforcement |
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