STATE OF INDIANA

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SS:

BEFORE THE INDIANA DEPARTMENT OF

 

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COUNTY OF MARION

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ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT

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OF ENVIRONMENTAL MANAGEMENT,

 

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Complainant,

 

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v.

 

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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”) 10-4-2, no person shall cause or allow the storage, containment, processing, or disposal of solid waste in a manner which creates a threat to human health or the environment, including the creating of a fire hazard, vector attraction, air or water pollution, or other contamination.  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 at the Site, in a manner which creates a threat to human health or the environment.

 

b.         Pursuant to 329 IAC 10-4-3, open dumping and open dumps, as those terms are defined in IC 13-11-2-146 and IC 13-11-2-147, are prohibited.  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 at the Site.

 

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:

Department of Environmental Management

 

 

 

By: _________________________

By:  _________________________

 

Nancy Johnston, Section Chief

 

 

Enforcement Section

Printed: ______________________

Office of Land Quality

 

 

Title: ________________________

 

 

Date: _______________________

Date: ________________________

 

 

 

 

 

COUNSEL FOR RESPONDENT:

 

 

 

 

 

By: _________________________

 

 

 

 

 

 

Date: ________________________

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

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DAY OF

________________________,

20__.

 

 

For the Commissioner:

 

 

 

** Signed October 20, 2016 **

 

Peggy Dorsey

 

Deputy Assistant Commissioner

 

Office of Land Quality