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STATE OF
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BEFORE THE
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COUNTY OF
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ENVIRONMENTAL
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COMMISSIONER
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OF
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Complainant, |
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Case No. 2018-24981-S |
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hARRY r. & HERBERT HOLDING AND |
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HRH
TRUCKING, LLC, |
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Respondents. |
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AGREED ORDER
Complainant
and Respondents 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. Respondents’ entry into this Agreed Order shall not constitute a waiver
of any defense, legal or equitable, which Respondents 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.
Respondents are Harry R. & Herbert Holding
and HRH Trucking, LLC (“Respondents”), who open dumped contaminated soil, vehicle
parts, scrap metal and rubber on property
located at 4210 E McGalliard Street (Muncie Sand
and Gravel Inc.), Muncie, Indiana (the “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:
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Harry R. & Herbert Holding |
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Karen
M. Holding, Registered Agent |
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3100 North
Buckles Street |
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HRH
Trucking, LLC |
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Muncie, IN 47304 |
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2900
North Martin Luther King, Jr. Blvd. |
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Muncie,
IN 47304 |
5.
During an investigation including an inspection
on August 10, 2017 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.
As noted during the inspection, Respondents
caused and/or allowed solid waste, including, but not limited to, 4 triaxle
loads of contaminated soil, vehicle parts, scrap metal and rubber material,
that were excavated from the FT Muncie Partnership LLC property, 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.
As noted during the inspection, Respondents
caused and/or allowed 4 triaxle loads of contaminated soil, vehicle parts,
scrap metal and rubber material, that were excavated from the FT Muncie
Partnership LLC property, to be open dumped at the Site.
c. Pursuant to Indiana code (“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.
As noted during the inspection,
Respondents allowed 4 triaxle loads of contaminated soil, vehicle parts, scrap
metal and rubber material, that were excavated from the FT Muncie Partnership
LLC property, to be open dumped 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.
As noted during the inspection,
Respondents allowed 4 triaxle loads of contaminated soil, vehicle parts, scrap
metal and rubber material, that were excavated from the FT Muncie Partnership
LLC property, to be disposed 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 solid waste
management board.
As noted during the inspection, Respondents
caused and/or allowed 4 triaxle loads of contaminated soil, vehicle parts,
scrap metal and rubber material, that were excavated from the FT Muncie
Partnership LLC property, to be deposited at the Site 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.
As noted during the inspection Respondents
caused and/or allowed 4 triaxle loads of contaminated soil, vehicle parts,
scrap metal and rubber material, that were excavated from the FT Muncie
Partnership LLC property, solid wastes, to be open dumped at the Site in
violation of 329 IAC 10-4-2 and 329 IAC 10-4-3.
6. The contaminated soil, vehicle parts,
scrap metal and rubber material have been removed from the Site and properly
disposed at a permitted solid waste management disposal facility.
7. In recognition of the settlement
reached, Respondents waive 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 Respondents. This Agreed Order shall have no
force or effect until the Effective Date.
2.
Respondents shall comply with the statutes,
rules, and/or permit conditions listed in the findings above with respect to
this matter.
3.
Respondents are assessed and agree to pay a
civil penalty of Eight Thousand Seven Hundred and Fifty Dollars ($8,750). Respondents
are jointly and severally liable for all civil penalty assessments, including
stipulated penalties. Said penalty amount shall be due and
payable to the Environmental Management Special Fund in four (4) installments.
The first installment of Two Thousand One Hundred Eighty-Seven Dollars and
Fifty Cents ($2,187.50) shall be paid within thirty (30) days of the Effective
Date; the 30th day being the “Due Date”. Subsequent
installments of Two Thousand One Hundred Eighty-Seven Dollars and Fifty
Cents ($2,187.50) shall be paid within one
hundred twenty (120) days of the Effective Date, two hundred ten (210) days of
the Effective Date, and three hundred sixty-five (365) days of the Effective
Date.
4.
The civil penalty is payable by check to the
“Environmental Management Special Fund.” Checks shall include the Case Number
of this action and shall be mailed to:
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Indiana
Department of Environmental Management |
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Office
of Legal Counsel |
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IGCN,
Room N1307 |
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100
North Senate Avenue |
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Indianapolis, IN 46204 |
5. In the event that the monies due to
IDEM pursuant to this Agreed Order are not paid on or before their Due Date,
Respondents 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 Respondents pay 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 4, above.
6. This Agreed Order shall jointly and
severally apply to and be binding upon Respondents and their successors and
assigns. Respondents’ 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 their
status or responsibilities under this Agreed Order.
7. 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.
8. Respondents shall provide a copy of
this Agreed Order, if in force, to any subsequent owners or successors before
ownership rights are transferred. Respondents shall ensure that all
contractors, firms and other persons performing work under this Agreed Order
comply with the terms of this Agreed Order.
9.
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 Respondents pursuant to this Agreed Order, shall not in any way relieve
Respondents of their obligation to comply with the requirements of their applicable
permits or any applicable Federal or State law or regulation.
10.
Complainant does not, by
its approval of this Agreed Order, warrant or aver in any manner that
Respondents’ 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 Respondents may incur as a
result of Respondents’ efforts to comply with this Agreed Order.
11.
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.
12.
This Agreed Order shall remain in effect until
IDEM issues a Resolution of Case letter to Respondents.
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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
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Printed: ______________________ |
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Office of
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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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RESPONDENT: |
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By:
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Printed: ______________________ |
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COUNSEL FOR RESPONDENT: |
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By: ________________________ |
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Date: ______________________ |
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RESPONDENT: |
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By:
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Printed: ______________________ |
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Title: ________________________ |
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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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For the
Commissioner: |
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February 19,
2019 |
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Peggy Dorsey, Assistant Commissioner |
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Office of
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