STATE OF
INDIANA |
) |
|
BEFORE THE
INDIANA DEPARTMENT |
||
|
|||||
COMMISSIONER
OF THE DEPARTMENT Complainant, v. METZGER
CONSTRUCTION CO., LLC, Respondent. |
) |
|
|||
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 Metzger Construction,
Inc. (“Respondent”), which owns the source with Plant ID No. 173-03249, located at 655 N Center Road, Warrick 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. Heath Metzger of Metzger Construction Co., LLC.
5.
Respondent owns and operates an
asphalt plant.
6.
During an investigation of Respondent’s permit application submittal of June 22, 2016, a representative
of IDEM discovered the following violation:
a. Pursuant to 326 IAC 2-5.1-3, a new source
which has the potential to emit air pollutants in quantities equal to or
greater than the amounts specified in 326 IAC 2-5.1-3(a) shall obtain a construction
permit prior to beginning construction of an emissions unit.
Respondent constructed a portable drum mix asphalt plant, a major source for
PM-10, PM-2.5, and CO emissions, prior to receiving an
air permit in violation of 326 IAC 2-5.1-3.
b. Pursuant to 326 IAC 2-7-2, any major
source as defined in 326 IAC 2-7-1(22) must possess a Part 70 permit.
Respondent operated a portable drum mix
asphalt plant, a major source for PM-10, PM-2.5, and CO emissions, prior to receiving a Part 70 permit in violation of 326 IAC
2-7-2.
7.
Respondent submitted a Part 70 permit
application on June 22, 2016, and the Federally Enforceable State Operating
Permit (FESOP) No. 173-37327-03249 was issued on February 27, 2017.
8.
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 the Respondent. This Agreed Order shall have no force
or effect until the Effective Date.
2.
Respondent shall comply with 326 IAC 2-5.1-3
and with 2-7-2.
3.
All submittals required by this Agreed Order,
unless Respondent is notified otherwise in writing by IDEM, shall be sent to:
Vaughn
Ison,
Case Manager |
Compliance
and Enforcement Branch |
Indiana
Department of Environmental Management |
100 North
Senate Avenue |
Indianapolis,
IN 46204-2251 |
4.
Respondent is
assessed and agrees to pay a civil penalty of Nine Thousand Dollars ($9,000). 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”.
5.
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.
6.
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:
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 No. 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: |
|
RESPONDENT: |
|||||
Department
of Environmental Management |
|
Metzger Construction Co,. LLC |
|||||
|
|
|
|||||
By: |
|
|
By: |
|
|||
|
David
P. McIver, Chief |
|
Printed: |
|
|||
|
Enforcement
Section |
|
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 |
|
,
2017. |
|||
|
|||||||
|
For
the Commissioner |
||||||
|
|
||||||
|
Signed
on June 30, 2017 |
||||||
|
Keith
Baugues, Assistant Commissioner |
||||||
|
Office
of Air Quality |
||||||
|
Indiana
Department of Environmental Management |
||||||