STATE OF INDIANA		)	SS:	BEFORE THE INDIANA DEPARTMENT OF
		)
COUNTY OF MARION		)		ENVIRONMENTAL MANAGEMENT
COMMISSIONER OF THE DEPARTMENT					)
OF ENVIRONMENTAL MANAGEMENT,					)
					)
Complainant,					)
					)
	v.				)	Case No. 2011-19810-S
					)
SCHNEIDER LEASING, LLC					)
KENTUCKIANA TRUCKING INC.,					)
					)
Respondents.					)

AGREED ORDER

Complainant and Respondents 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. Respondents’ entry into this Agreed Order shall not constitute a waiver of any defense, legal or equitable, which Respondents 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. Respondents are Schneider Leasing, LLC and Kentuckiana Trucking Inc. (“Respondents”), who owns or operates an open dump containing regulated solid waste at 380 Emery Crossing, in Clarksville, Clark 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) on April 1, 2011, via Certified Mail to:

Jerome T. Schneider, Registered Agent	Jerome Schneider, Registered Agent
Schneider Leasing, LLC	Kentuckiana Trucking Inc.
3009 Crandall-Lanesville Rd.	3009 Crandall-Lanesville Rd.
Lanesville, IN 47136	Lanesville, IN 47136

5. During an investigation including inspections conducted on May 7, 2010 and May 25, 2010, by a representative of IDEM, the following violations were found:

a. 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, Respondents caused and/or allowed solid waste, including, but not limited to contaminated soil, to be deposited at the Site in a manner which creates a threat to human health or the environment.

b. 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.

As noted during the inspections, Respondents caused and/or allowed solid waste, including, but not limited to contaminated soil, to be open dumped at the Site.

c. Pursuant to IC 13-30-2-1(3), no person shall deposit any contaminants upon the land in a place and manner that creates or would create a pollution hazard that violates or would violate 329 IAC 10-4-2 and 329 IAC 10-4-3.

As noted during the inspections, Respondents deposited a contaminant, including, but not limited to contaminated soil, upon the land in a place and manner that creates or would create a pollution hazard that violates or would violate 329 IAC 10-4-2 and 329 IAC 10-4-3.

d. 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 solid waste management board.

As noted during the inspections, Respondents caused and/or allowed solid waste, including, but not limited to contaminant soil, to be deposited at the Site in a method unacceptable to the solid waste management board.

e. 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.

As noted during the inspections, Respondents caused and/or allowed solid waste, including, but not limited to contaminated soil, to be open dumped at the Site.

6. Respondents have disputed that they own or operate an open dump and they further claim that they were under the belief that the Site had accepted only clean fill because at the time they accepted or placed material at the Site from the Louisville Arena site, Respondents believed the material consisted of only uncontaminated rocks, bricks, concrete, road demolition waste material, or dirt.

7. In recognition of the settlement reached, Respondents waive 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 Respondents. This Agreed Order shall have no force or effect until the Effective Date.

2. Respondents shall immediately cease the deposition of any regulated solid waste at the Site, unless done in compliance with a solid waste facility permit.

3. Respondents shall, upon the Effective Date, ensure that all work conducted to satisfy the requirements of this Order are done in compliance with all applicable federal, state and local laws and regulations.

4. Respondents have submitted a revision to the Workplan for Removal of Impacted Fill Material and Confirmatory Soil Sampling dated July 1, 2010, to incorporate IDEM’s comments and Respondents’ responses to comments to IDEM for review and approval, such revision being dated November 14, 2011 (hereinafter called the “Revised Workplan”).

5. Respondents shall, within one hundred and twenty (120) days of the date IDEM provides Respondents with written approval of the Revised Workplan (such plan as approved hereinafter called the “Approved Workplan”), remove regulated solid waste, including, but not limited to contaminated soil, deposited at the Site in accordance with the Approved Workplan.

6. Respondents shall, within one hundred and eighty (180) days of the date IDEM provides Respondents with written approval of the Revised Workplan, submit written documentation and confirmatory sampling required by the Approved Workplan to demonstrate that the regulated solid waste, including, but not limited to contaminated soil, deposited at the Site have been taken to a permitted solid waste management facility.

7. All submittals required by this Agreed Order, unless Respondents are notified otherwise in writing by IDEM, shall be sent to:

Janet Arnold, Technical Environmental Specialist

Office of Land Quality – Mail Code 60-02L

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

8. Respondents are assessed and agree to pay a civil penalty of Twelve Thousand Five Hundred Dollars ($12,500). Respondents are jointly and severally liable for all civil penalty assessments, including stipulated penalties. Said penalty amount shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the Effective Date; the 30^th day being the “Due Date”.

9. In the event the terms and conditions of the following paragraphs are violated, Complainant may assess and Respondents shall pay a stipulated penalty in the following amount:

Paragraph	Penalty
Failure to comply with paragraph 5	$100 per week
Failure to comply with paragraph 6	$100 per week submittal is late

10. Stipulated penalties shall be due and payable no later than the 30^th day after Respondents receive written notice that Complainant has determined a stipulated penalty is due; the 30^th day being the “Due Date”. Complainant may notify Respondents at any time that a stipulated penalty is due. Failure to notify Respondents 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 Respondents for violation of this Agreed Order. Neither assessment nor payment of stipulated penalties shall preclude Complainant from seeking additional relief against Respondents 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.

11. Civil and 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

Cashier – Mail Code 50-10C

100 North Senate Avenue

Indianapolis, IN 46204-2251

12. In the event that the monies due to IDEM pursuant to this Agreed Order are not paid on or before their Due Date, Respondents 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 Respondents pay any unpaid balance. Such interest shall be payable to the Environmental Management Special Fund, and shall be payable to IDEM in the manner specified in Paragraph 11, above.

13. Force majeure, for purposes of this Agreed Order, is defined as any event arising from causes totally beyond the control and without fault of Respondents that delays or prevents the performance of any obligation under this Agreed Order despite Respondents’ best efforts to fulfill the obligation. The requirement that Respondents exercise “best efforts to fulfill the obligation” includes using best efforts to anticipate any potential force majeure event and best efforts to address the effects of any potential force majeure event (1) as it is occurring and (2) following the potential force majeure event, such that the delay is minimized to the greatest extent possible. Force majeure does not include (1) changed business or economic conditions; (2) financial inability to complete the work required by this Agreed Order; or (3) increases in costs to perform the work.

Respondents shall notify IDEM by calling the case manager within three (3) calendar days and by writing no later than seven (7) calendar days after it has knowledge of any event which Respondents contend is a force majeure. Such notification shall describe (1) the anticipated length of the delay; (2) the cause or causes of the delay; (3) the measures taken or to be taken by Respondents to minimize the delay; and (4) the timetable by which these measures will be implemented. Respondents shall include with any notice all available documentation supporting its claim that the delay was attributable to a force majeure. Failure to comply with the above requirements shall preclude Respondents from asserting any claim of force majeure for that event. Respondents shall have the burden of demonstrating that the event is a force majeure. The decision of whether an event is a force majeure shall be made by IDEM.

If a delay is attributable to a force majeure, IDEM shall extend, in writing, the time period for performance under this Agreed Order, by the amount of time that is directly attributable to the event constituting the force majeure.

14. This Agreed Order shall jointly and severally apply to and be binding upon Respondents and their successors and assigns. Respondents’ 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 Respondents shall in any way alter their status or responsibilities under this Agreed Order.

15. 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.

16. Respondents shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights are transferred.   Respondents shall ensure that all contractors, firms and other persons performing work under this Agreed Order comply with the terms of this Agreed Order.

17. 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 Respondents pursuant to this Agreed Order, shall not in any way relieve Respondents of their obligation to comply with the requirements of their applicable permits or any applicable Federal or State law or regulation.

18. Complainant does not, by its approval of this Agreed Order, warrant or aver in any manner that Respondents’ 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 Respondents may incur as a result of Respondents’ efforts to comply with this Agreed Order.

19. 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.

20. 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 Respondents may incur as a result of such communications with the EPA or any other agency or entity.

21. This Agreed Order shall remain in effect until IDEM issues a Resolution of Case letter to Respondents.

TECHNICAL RECOMMENDATION:				RESPONDENTS:
Department of Environmental Management
By: _________________________				By: _________________________
	Nancy Johnston, Section Chief
	Enforcement Section			Print: _______________________
Office of Land Quality
				Title: ________________________
Date: __________________				Date: _______________________
				By: _________________________
				Print: _______________________
				Title: ________________________
				Date: _______________________
COUNSEL FOR COMPLAINANT:
For the Department of Environmental Management
By: ________________________
Date: _______________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS		_________	DAY OF	_______________,	20__.
				For the Commissioner:
				Signed April 5, 2012
				Bruce H Palin
				Assistant Commissioner
				Office of Land Quality