STATE OF
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BEFORE THE
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COUNTY OF
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ENVIRONMENTAL
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COMMISSIONER
OF THE DEPARTMENT |
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OF
ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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Case No. 2016-23779-S |
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ACE
PAVING, LLC, |
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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/or operates a facility, located at 16708 U.S.
Highway 31 in Westfield, Hamilton County, Indiana. Respondent was contracted
to assist in the cleanup of an automotive salvage yard operated by G.W. Pierce
Enterprises, LLC, located at 22275 U.S. 31 North, Cicero, Hamilton County,
Indiana (the “Site”).
3. On February 23, 2016, a fire
occurred at G.W. Pierce Enterprises, LLC due to the misuse of an air curtain
destructor, which ignited surrounding solid waste, waste tires, and car parts.
4. IDEM has jurisdiction over the parties
and the subject matter of this action.
5. Pursuant to Indiana Code (“IC”) 13-11-2-146, “Open dump" for purposes of environmental management laws, means the
consolidation of solid waste from one (1) or more sources or the
disposal of solid waste at a single disposal site that: (1) does
not fulfill the requirements of a sanitary landfill or other land
disposal method as prescribed by law or regulations; and (2) is
established and maintained: (A) without cover; and (B) without
regard to the possibilities of contamination of surface or subsurface
water resources.
6. Pursuant to IC 13-11-2-147, “Open dumping” for purposes of
environmental management laws, means the act of disposing of solid waste
at an open dump.
7. During an investigation, including an inspection
on February 23, 2016 and February 25, 2016, conducted by a representative of
IDEM, the following violations were found:
a. Pursuant to 329 Indiana Administrative
Code (“IAC”)
b. Pursuant to 329 IAC
c. Pursuant to IC 13-30-2-1(1), no person
shall discharge, emit, cause, allow, or threaten to discharge, emit, cause, or
allow any contaminant or waste, including any noxious odor, either alone or in
combination with contaminants from other sources, into the environment in any
form that causes or would cause pollution that violates or would violate 329 IAC
10-4-2 and 329 IAC 10-4-3, rules adopted by the board under the environmental
management laws. Respondent caused
and/or allowed solid waste, including, but not limited to, waste tires, bags of
trash, canned food, wood, plastics, ash from air curtain destructor use, cardboard,
and glass to be stored and/or disposed into the environment in several areas at
the Site.
d. 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. Respondent
deposited contaminants, including but not limited to, waste tires, bags of
trash, canned food, wood, plastics, ash from air curtain destructor use, cardboard,
and glass upon the land in a place and manner that creates or would create a
pollution hazard that violates 329 IAC 10-4-2 and 329 IAC 10-4-3.
e. 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 board. Respondent deposited or caused and/or allowed
the deposit of contaminants and/or solid waste, including, but not limited to, waste
tires, bags of trash, canned food, wood, plastics, ash from air curtain destructor
use, cardboard, and glass in a method, which has not been
determined by the board to be acceptable.
f. 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. Respondent caused and/or allowed solid waste,
including, but not limited to, waste tires, bags of trash, canned food, wood,
plastics, ash from air curtain destructor use, cardboard, and glass to be open
dumped at the Site in violation of 329 IAC 10-4-2 and 329 IAC 10-4-3.
g. Pursuant to 329 IAC 11-9-1, (a) unless
excluded in 329 IAC 11-3, any person who constructs or operates a solid waste
processing facility as defined under 329 IAC 11-2-43 shall have a solid waste
processing facility permit. Respondent
failed to obtain a solid waste processing facility permit while operating a
solid waste processing facility at the Site.
Specifically, Respondent transported and operated an air curtain
destructor at the Site for the purpose of solid waste incineration; thereby,
designating the Site as a solid waste processing facility.
8. It was confirmed
on August 16, 2016 that Respondent had removed all the solid waste brought onto
the Site and disposed of it at a permitted solid waste management facility.
9. 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 statutes and
rules listed in the findings above.
3.
Effective immediately, Respondent shall
comply with 329 IAC 11-9-1 and cease operating as a Solid Waste Processing Facility.
4. Respondent is
assessed and agrees to pay a civil penalty of Twelve Thousand and Four
Hundred Dollars ($12,400). Said penalty
amount shall be due and payable to the Environmental Management Special Fund in
twenty-four (24) consecutive monthly installments. The payments shall be as follows: twenty-three
(23) installments of Five Hundred and Seventeen Dollars ($517) and one (1)
installment of Five Hundred and Nine Dollars ($509). The first installment shall be due within
thirty (30) days of the Effective Date with the “Due Date” for each consecutive
monthly installment being the 30th day.
5. 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:
Indiana
Department of Environmental Management |
Office
of Legal Counsel |
IGCN,
Room N1307 |
100
North Senate Avenue |
Indianapolis,
Indiana 46204 |
6. 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.
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 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 its obligation to comply with the
requirements of its applicable permits 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: |
RESPONDENT: |
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Department of Environmental
Management |
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By: _________________________ |
By:
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Nancy
Johnston, Section Chief |
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Enforcement
Section |
Printed: ______________________ |
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Office of
Land Quality |
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Title: ________________________ |
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Date: _______________________ |
Date: ________________________ |
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COUNSEL FOR RESPONDENT: |
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By: _________________________ |
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Date: ________________________ |
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APPROVED
AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT
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DAY
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For the
Commissioner: |
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** Signed
October 20, 2016 ** |
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Peggy Dorsey |
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Deputy Assistant
Commissioner |
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Office of
Land Quality |
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