STATE OF INDIANA

COUNTY OF MARION

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BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v.

MILESTONE CONTRACTORS, L.P.,

Respondent.

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Case No. 2014-22700-A

 

 

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 Milestone Contractors, L.P. (“Respondent”), which owns/operates the facility with Plant ID No. 027-03273, located at 10237 East US Highway 50 in Cannelburg, Daviess 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”) to the following.

 

Mr. Robert Beyke

Thomas L. Mattix, Registered Agent

Milestone Contractors, L.P.

5400 West 86th Street

5950 S. Belmont Avenue

Indianapolis, IN 46268

Indianapolis, Indiana 46217

 

 

5.               During an investigation conducted by a representative of IDEM, the following violation was found:

 

a)              Pursuant to 40 CFR 63, Subpart ZZZZ, non-emergency, non-black start stationary compression ignition reciprocating internal combustion engine (“CI RICE”) greater than 500 horsepower shall comply with the applicable requirements of this subpart.

 

Respondent operated a CI RICE (Generator Unit 14) to provide electrical power to the asphalt production process at the Site without complying with applicable requirements, in violation of 40 CFR 63, Subpart ZZZZ.

 

b)              Pursuant to permit F027-31754-03273 condition D.1.8, Respondent shall repeat PM and PM10 testing of the dryer/mixer at least once every five years from the date of the most recent valid compliance demonstration.

 

Respondent failed to conduct repeat testing for PM and PM10 within 5 years of the most recent stack test, which took place on 5/27/2009, in violation of permit F027-31754-03273 condition D.1.8.

 

c)               Pursuant to permit F027-31109-03273 condition D.1.8 which issued on 4/12/2012, Respondent shall perform PM2.5 testing not later than 180 days after the startup of the dryer/mixer.

 

Respondent failed to perform PM2.5 testing on dryer/mixer no later than 180 days after startup, in violation of permit F027-31109-03273 condition D.1.8.

 

6.               Respondent performed PM, PM10, and PM2.5 stack testing on the dryer/mixer at the facility located at 10237 East US Highway 50 in Cannelburg, Daviess County, Indiana on November 5, 2014.

 

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 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 rules listed in the findings here and/or above at issue.

 

3.               Within 30 days of the Effective Date, Respondent shall submit to IDEM a plan for how the facility located at 10237 East US Highway 50 in Cannelburg, Daviess County, Indiana will demonstrate compliance with all applicable requirements of 40 CFR 63, Subpart ZZZZ.  The compliance plan will include the timing associated with each activity to demonstrate compliance.

 

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

 

Rebecca Hayes, 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

 

5.               Respondent is assessed and agrees to pay a civil penalty of Ten Thousand Dollars ($10,000).  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”.

 

6.               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

Violation

Stipulated Penalty

3

Failure to submit required documentation

$500 per week

 

 

 

7.               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 a 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.

 

8.               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

 

9.               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.

 

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 Environmental Management Special Fund, and shall be payable to IDEM in the manner specified in Paragraph 8, above.

 

11.           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.

 

12.           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.

 

13.           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.

 

14.           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.

 

15.           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.

 

16.           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.

 

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

 

 

TECHNICAL RECOMMENDATION:

 

RESPONDENT:

Department of Environmental Management

 

Milestone Contractors, L.P.

 

 

 

By:

 

 

By:

 

 

Janusz Johnson, Chief

 

Printed:

 

 

Compliance and Enforcement Section 1

 

Title:

 

 

Office of Air Quality

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

 

 

 

 

 

COUNSEL FOR RESPONDENT:

 

 

 

 

 

 

 

 

 

By:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Date:

 

 

 

 

 

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

 

DAY OF

 

, 2015.

 

 

For the Commissioner

 

 

 

Signed on February 2, 2015

 

Keith Baugues, Assistant Commissioner

 

Office of Air Quality

 

Indiana Department of Environmental Management