STATE
OF INDIANA |
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BEFORE THE INDIANA DEPARTMENT |
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COMMISSIONER OF THE DEPARTMENT Complainant, v. DAVE O’MARA CONTRACTOR, INC.,, 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 Dave O’Mara Contractor, Inc.
(“Respondent”), which owns/operates the asphalt plant with Plant ID No.
145-05372, Federally Enforceable State Operating Permit No. F145-31638-05372
(“Permit”), located at 11170 West 200 South in Flat Rock, Shelby 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”) in conjunction with this Agreed Order to:
Dave
O’Mara, President Dave
O’Mara Contractor, Inc. P. O. Box
1139 2940 N CR
75 W North
Vernon, IN 47265 |
5.
During a review conducted by a representative
of IDEM, the following violations were found:
a.
Pursuant to 326 IAC 2-5.1-3(a), prior to
commencing construction of any emissions unit which has potential emissions of
twenty-five (25) tons or more per year of any of the regulated pollutants
specified in section (E) of this Rule, the source shall apply for and obtain a
construction permit.
Respondent constructed emission units
at the Site without first applying for and obtaining a construction permit, in
violation of 326 IAC 2-5.1-3(a).
b.
Pursuant to 326 IAC 2-5.1-3(h) and 326 IAC 2-7-2,
any major source as defined in section 1(22) of this rule is required to have a
Part 70 operating permit.
Respondent was issued a Permit on June
1, 2012. Records reviewed on the day of inspection showed operations began on
May 29, 2012 in violation of and 326 IAC 2-5.1-3(h) and 326 IAC 2-7-2.
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 Permit.
3.
All submittals required by this Agreed Order,
unless Respondent is notified otherwise in writing by IDEM, shall be sent to:
Mary Kelley, Compliance and
Enforcement Manager |
Compliance and Enforcement Branch –
Mail Code 61-53 |
Indiana Department of Environmental
Management |
100 North Senate Avenue |
Indianapolis, IN 46204-2251 |
4.
Respondent is assessed and agrees to pay a civil
penalty of Seven Thousand Eight Hundred Seventy Five Dollars ($ 7,875.00). Said penalty amount shall be due and payable
to the Environmental Management Special Fund within thirty (30) days of the
Effective Date; the 30th day being the “Due Date”.
5.
The civil penalty is 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 |
6.
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 their status or responsibilities under this Agreed Order.
7.
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 Special Fund, and shall be payable to IDEM in the manner
specified in Paragraph 5, above.
8.
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.
9.
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.
10.
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 their obligation to comply with the
requirements of their applicable permit or any applicable Federal or State law
or regulation.
11.
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.
12.
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.
13.
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.
14.
This Agreed Order shall remain in effect
until IDEM issues a Resolution of Case letter to Respondent.
TECHNICAL
RECOMMENDATION: |
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RESPONDENT: |
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Department
of Environmental Management |
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Dave O’Mara Contractor, Inc. |
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Janusz Johnson, Chief |
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Printed: |
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Compliance
and Enforcement Section 1 |
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Office
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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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2013. |
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For
the Commissioner |
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Signed
on March 28, 2013 |
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Keith
Baugues, Assistant Commissioner |
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Office
of Air Quality |
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Indiana
Department of Environmental Management |
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