STATE OF
INDIANA |
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BEFORE THE INDIANA DEPARTMENT |
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COMMISSIONER OF THE DEPARTMENT Complainant, v. E & B PAVING, 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 E & B Paving, Inc.
(“Respondent”), which operates a portable hot asphalt plant with Plant ID No. 055-05211,
located at CR 475 West, in Switz City, Greene 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”) on June 1, 2016 via Certified Mail to:
Larry Canterbury
President & Registered Agent
E&B Paving, Inc.
286 West 300N
Anderson, IN 46012
5.
During an investigation conducted by a
representative of IDEM, the following violations were found:
a. Pursuant to 40 CFR 60, Subpart I, and condition E.1 of
Federally Enforceable State Operating Permit F055-30371-05211 (“Permit”),
Respondent is required to limit particulate matter (“PM”) emissions from the
portable hot mix plant to 0.04 grains/dry standard cubic foot (“gr/dscf”)..
Respondent conducted compliance stack testing on October 2, 2015 which
demonstrated PM emissions of 0.051gr/dscf, in
violation of 40 CFR 60, Subpart I, and Permit condition E.1.
b. Pursuant to Permit condition C.17(a) Respondent is required to submit a response action
for the failed compliance test within seventy-five (75) days to IDEM.
Respondent failed to submit a response
action for the failed compliance stack test, conducted on October 2, 2015,
within seventy-five (75) days to IDEM, in violation of Permit condition C.17(a).
6.
Respondent had been in seasonal shut-down
since November, 2015 and resumed operation as of May 11, 2016.
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 40 CFR 60,
Subpart I and permit conditions at issue.
3.
Within ninety (90) days of the Effective Date,
Respondent shall conduct compliance stack testing pursuant to 326 IAC 3-6 to
demonstrate compliance with 0.04 gr/dscf limit
pursuant to 40 CFR 60, Subpart I.
4.
All submittals required by this Agreed Order,
unless Respondent is notified otherwise in writing by IDEM, shall be sent to:
Jennifer
Bailey, 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 Fifteen Thousand Dollars ($15000). 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 |
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3 |
Failure to
perform compliance stack test |
$500/week |
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within 90 days of Effective Date |
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 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:
IDEM
Office of Legal Counsel |
IGCN,
Rm N1307 |
100
N Senate Ave |
Indianapolis,
IN 46204 |
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 Respondents shall in any way alter its
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 5, 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 its obligation to comply with the
requirements of its 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 the Respondent.
TECHNICAL
RECOMMENDATION: |
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RESPONDENT: |
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Department
of Environmental Management |
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E & B Paving, Inc. |
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By: |
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By: |
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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
of Air Quality |
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COUNSEL
FOR RESPONDENT: |
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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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2016. |
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For
the Commissioner |
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Signed
on August 17, 2016 |
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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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