STATE OF
INDIANA |
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BEFORE THE INDIANA DEPARTMENT |
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COMMISSIONER OF THE DEPARTMENT Complainant, v. ACE PAVING, LLC, 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 Ace Paving, LLC (“Respondent”),
which owns and operates the company located at 16211 Montrose Lane in Westfield,
Hamilton 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”) via Certified Mail to:
Mr.
Dan Ealy, Owner |
Mr.
Gregory Halcomb, Registered Agent |
Ace
Paving, LLC |
Holt
Fleck & Romine |
16211
Montrose Lane |
83
South 9th Street |
Westfield,
IN 46074 |
Noblesville,
IN 46060 |
5.
Respondent owns and operates a residential
and commercial asphalt paving company.
6.
During an investigation conducted by a
representative of IDEM, the following violations were found:
a)
Pursuant to 326 Indiana Administrative Code
(“IAC”) 4-1-2, open burning is prohibited except as allowed in the rule.
On February 23, 2016, Respondent open burned tires, plastic car parts,
electronics, building materials, food products, domestic waste, and
miscellaneous debris, in violation of 326 IAC 4-1-2.
b)
Pursuant to 326 IAC 4-2, incinerators shall
comply with standards and requirements for the use of incinerators which emit
regulated pollutants.
On February 23, 2016, Respondent operated an incinerator that did not comply
with standards and requirements for the use of incinerators which emit
regulated pollutants, in violation of 326 IAC 4-2.
c)
Pursuant to 326 IAC 2-7-2 and 326 IAC
2-5.1-3, sources are required to obtain a Title V/Part 70 Operating Permit
(“TVOP”) prior to constructing or operating a major source of air pollution.
On February 23, 2016, Respondent constructed and operated a major source of air
pollution prior to obtaining a TVOP, in violation of 326 IAC 2-7-2 and 326 IAC 2-5.1-3.
d)
Pursuant to 326 IAC 9-1-2(a)(3),
refuse incinerators shall burn the waste gas stream using a direct-flame
afterburner or in a secondary chamber.
On February 23, 2016, Respondent operated a refuse incinerator without burning
the waste gas stream using a direct-flame afterburner or in a secondary
chamber, in violation of 326 IAC 9-1-2(a)(3).
e)
Pursuant to 40 Code of Federal Regulations
(CFR) Part 60, Subpart CCCC and 326 IAC 12, commercial and industrial solid
waste incinerators are required to comply with applicable requirements and
emission standards in the New Source Performance Standards (“NSPS”) for
Commercial and Industrial Solid Waste Incineration Units (“CISWI”).
On February 23, 2016, Respondent operated a commercial and industrial solid waste
incinerator that did not meet the applicable requirements and emission
standards in the CISWI NSPS, in violation of 40 CFR 60, Subpart CCCC and 326
IAC 12.
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 326 IAC 4-1.
3.
Respondent shall submit an open burning
approval using an air curtain destructor request to IDEM and obtain a valid
letter of approval prior to locating and operating the air curtain destructor
at each proposed burning site property.
These applications shall be sent to:
Office of Air Quality
Indiana Department of Environmental Management
MC 61-50, Room 1003
Indianapolis, IN 46204-2251
4.
All submittals required by this Agreed Order,
unless Respondent is notified otherwise in writing by IDEM, shall be sent to:
Ms. Brooke
A. Myer, 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 Twelve Thousand Five Hundred Dollars ($12,500.00). 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”.
6.
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 |
7.
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 its status or responsibilities under this Agreed Order.
8.
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 6, above.
9.
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.
10.
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.
11.
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.
12.
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.
13.
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.
14.
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.
15.
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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Ace Paving, LLC |
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By: |
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By: |
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Roger
Letterman, Chief |
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Printed: |
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Compliance
and Enforcement Section 3 |
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Title: |
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Office
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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 October 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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