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STATE OF
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BEFORE THE
INDIANA DEPARTMENT OF |
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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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v. |
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Case No. 2018-25317-S |
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Garrett 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 owns and/or operates the former
Dalton Foundry, parcel number 57-09-04-400-482.000-004 (“Foundry”) and Monofill Property, parcel numbers 57-09-05-100-005.000-004
and 57-09-05-100-006.000-004 (“Monofill”) located at
200 West Ohio Street, in Kendallville, Noble County, Indiana (the “Foundry
Site” and the “Monofill 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”) to:
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Garrett
LLC |
Michael
E. Heitz, Registered Agent |
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558
Central Avenue |
Garrett,
LLC |
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Lexington,
KY 40502 |
163
Kentucky Avenue |
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Lexington,
KY 40502 |
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Garrett,
LLC |
Cory
Heitz, Member |
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1562
E. Kammerer Rd |
Garrett,
LLC |
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Kendallville,
IN 46755 |
558
Central Avenue |
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Lexington,
KY 40502 |
5.
IDEM approved a Scrap Iron Reclamation Approval for the Monofill
Site on March 19, 2015. The project was
to be completed within twenty-four (24) months of starting. During an inspection conducted on July 11,
2016, it was found that reclamation efforts had abruptly stopped.
6.
IDEM conducted a site visit on July 11,
2017. Inspections were conducted on July
24, 2017, November 14, 2017, and on April 11, 2018.
In response to the July 24, 2017
inspection an Inspection Summary Letter dated August 16, 2017 was sent
addressing the Monofill Site and a Violation Letter
dated September 7, 2017 addressed the Foundry Site. IDEM received a response dated October 5,
2017 to the September 7, 2017 Violation Letter for the Foundry Site, which
stated the violations would be corrected.
Subsequent inspections noted the violations were not corrected.
IDEM sent an Inspection Summary Letter
for the November 14, 2017 inspection dated January 29, 2018. IDEM then sent a Violation Letter (Case No.
2018-25021-S) dated March 6, 2018 addressing the November 14, 2017
inspection. IDEM received submittals
from Respondent dated April 2 and April 27, 2018.
A follow-up inspection was conducted on
April 11, 2018. IDEM sent an Inspection Summary
Letter dated May 4, 2018 which addressed the November 14, 2017 inspection and additional violations.
7.
During an investigation including inspections
conducted on July 24, 2017, November 14, 2017 and April 11, 2018 and a record review following the November 14,
2017 inspection by a representative of IDEM, the following violations were
found:
a. Pursuant to IC 13-30-2-1(4), no person
shall deposit or cause or allow the deposit of any 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.
As noted during the inspections,
Respondent deposited or caused and/or allowed the deposit of contaminants
and/or solid wastes, including, but not limited to demolition debris (i.e.
painted concrete, roofing materials, and process equipment) burn pile debris, foundry
slag and foundry waste throughout the Foundry Site in a method which has not
been determined by the board to be acceptable.
The waste was in different piles on the Foundry Site. Also observed was unauthorized waste (empty
hydraulic fluid containers and garbage) deposited on the Monofill
Site.
b. 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 inspections,
Respondent dumped or caused and/or allowed the open dumping of demolition
debris (i.e. painted concrete, roofing materials, and process equipment), burn
pile debris, foundry slag and other foundry waste throughout the Foundry Site
in a method which has not been determined by the board to be acceptable. The waste was in different piles on the Foundry
Site. Also observed was unauthorized
waste (empty hydraulic fluid containers and garbage) deposited on the Monofill Site.
c. Pursuant
to 329 IAC 10-4-4, the owner of real estate upon which an open dump is located
is responsible for the following:
(1) Correcting and controlling any nuisance
conditions that occur as a result of
the open dump. Correction and control of nuisance must include:
(A) removal of all
solid waste from the area of the open dump and disposal of such wastes in a
solid waste land disposal facility permitted to accept the waste;
(B) or other methods as approved by the
commissioner.
(2) Eliminating any threat to human health or
the environment.
As noted during the inspections, Respondent
dumped or caused and/or allowed the open dumping of demolition debris (i.e.
painted concrete, roofing materials, and process equipment), burn pile debris, foundry
slag and other foundry waste throughout the Foundry Site in a method which has
not been determined by the board to be acceptable. The waste was in different piles on the Foundry
Site. Also observed was unauthorized
waste (empty hydraulic fluid containers and garbage) deposited on the Monofill Site.
d. Pursuant to the Scrap Iron Reclamation Approval dated March 19, 2015 and Request for
Additional Information Closure/Post-Closure Plan Addendum Former Dalton Foundry
Monofill & Property dated October 10, 2017,
Condition B2.b., the owner and contractor must carefully strip and stockpile
any existing monofill cover for use in the site
closure after completing the reclamation activities.
As noted
during the April 11, 2018 inspection, foundry wastes are deposited on top of
the soil on the outer slopes of the Monofill Site. All available soil cover on-site has been
mixed with foundry waste and is now contaminated.
e. Pursuant to the Scrap Iron Reclamation Approval dated March 19, 2015 and Request
for Additional Information Closure/Post-Closure Plan Addendum Former Dalton Foundry
Monofill & Property dated October 10, 2017, Condition B2.f., complete cover installation,
grading, and seeding in a current reclamation area before starting reclamation
in the next area.
As noted during the April 11, 2018
inspection, the side slopes had been damaged and/or removed have not been
repaired. The open area of exposed
foundry waste of exposed foundry waste is larger than the area seen at the
November 14, 2017 inspection. At that
inspection, the open area was larger than 2 acres.
f. Pursuant to the Scrap Iron Reclamation Approval dated March 19, 2015 and Request
for Additional Information Closure/Post-Closure Plan Addendum Former Dalton Foundry
Monofill & Property dated October 10, 2017,
Condition B2.c. follow the Revised
Erosion and Sediment Control Plan dated April 18, 2017.
As noted during the April 11, 2018
inspection, the silt fences were damaged all around the solid waste boundary of
the Monofill Site.
There was ponded water on top of the landfill. A breach was seen in the
side slope and an erosion rill was present on the east side of the Monofill Site.
Releases of foundry waste from the breach could be seen in ditches on
the east side. Waste from the outside of
the side slopes was released into the ditches around the west and north sides.
g. Pursuant to the Scrap Iron Reclamation Approval dated March 19, 2015 and Request
for Additional Information Closure/Post-Closure Plan Addendum Former Dalton Foundry
Monofill & Property dated October 10, 2017, Condition B2.e., all
foundry waste taken out of the landfill and staged on the former foundry
property must be returned to the monofill and capped.
As noted during the July 24, 2017
inspection, the facility staged foundry wastes from the Monofill
Site on to the Foundry Site. The staged
foundry wastes must be returned to the Monofill Site
and capped in accordance with the Scrap
Iron Reclamation Approval dated March 19, 2015 and Request for Additional
Information Closure/Post-Closure Plan Addendum Former Dalton Foundry Monofill & Property dated October 10, 2017. Ensure that all foundry wastes that were
removed from the Monofill Site are returned prior to
placement of the cap.
In Respondent’s submittal dated October
6, 2017, it states the metal reclamation at the southern portion of the Monofill Site will be completed by early November 2017,
then will be moving the operations to the northern portion of the Monofill Site. It is
projected that the metal reclamation operations will be completed in the 2nd
quarter of 2018, at which time the Monofill Site
capping phase will be initiated and the staged foundry sand will be trucked
back into the Monofill Site for final disposal.
As of the April 11, 2018 inspection, the
foundry wastes remains on the Foundry Site.
h.
Pursuant to the Scrap Iron Reclamation Approval dated March 19, 2015 and Request
for Additional Information Closure/Post-Closure Plan Addendum Former Dalton Foundry
Monofill & Property dated October 10, 2017, Condition B2., the owner and contractor must
limit reclamation activities and foundry sand storage to the approximately 2
acres delineated on the monofill map included in the
proposal.
During
the April 11, 2018 inspection, the area of exposed foundry waste excavated was
larger than the areas seen at the November 14, 2017 inspection. The area excavated exceeded 2 acres
delineated on the monofill map.
i.
Pursuant to the Scrap Iron Reclamation Approval dated March 19, 2015 and Request
for Additional Information Closure/Post-Closure Plan Addendum Former Dalton Foundry
Monofill & Property dated October 10, 2017, Condition B2. d., minimize disturbance of the
outer side slopes of the monofill below existing
drainage swales and ensure the monofill’s side
slopes’ stability.
During
the November 14, 2017 and April 11, 2018 inspections, the side slopes on the
southwest and south side of the Monofill Site had
been disturbed below the existing drainage swales. The side slope stability has not been ensured
since the side slope was damaged and completely removed in some locations.
j.
Pursuant to the Scrap Iron Reclamation Approval dated March 19, 2015 and Request
for Additional Information Closure/Post-Closure Plan Addendum Former Dalton Foundry
Monofill & Property dated October 10, 2017, Conditions C4.e. and
C5.a., correct and control any leachate outbreaks.
During
the July 24, 2017 and November 14, 2017 inspections, the leachate outbreak on
the north side of the Monofill Site was still
visible. No attempts were made to
control or correct the leachate outbreak.
Respondent
submitted a response dated April 27, 2018.
According to this response on April 9, 2018 repairs of the leachate seep
were initiated. This area was not
inspected during the April 11, 2018 inspection.
k.
Pursuant to the Scrap Iron Reclamation Approval dated March 19, 2015 and Request
for Additional Information Closure/Post-Closure Plan Addendum Former Dalton Foundry
Monofill & Property dated October 10, 2017, Conditions B4. and
C5.b., the owner and contractor must immediately initiate corrective action if
any nuisance or ground surface pollution conditions are created. Nuisance
conditions include erosion of final cover.
During the November 14, 2017 inspection,
there was a visible erosion rill in the final cover on the north side of the Monofill Site. No
attempts were made to initiate corrective action.
According to Respondent’s April 27, 2018
response; this area was corrected.
However, during the April 11, 2018 inspection additional erosion was
noted on the east side of the Monofill Site.
l.
Pursuant to the Scrap Iron Reclamation Approval dated March 19, 2015 and Request
for Additional Information Closure/Post-Closure Plan Addendum Former Dalton Foundry
Monofill & Property dated October 10, 2017, Conditions D1. and
D3., the owner must submit a financial responsibility update by June 15 of each
year. The closure and post-closure estimates must be updated for inflation and
increased costs. The owner must provide documentation if the costs will be
reduced. The owner must submit signed originals.
During
a record review following the November 14, 2017 inspection, the owner has not
submitted the required financial responsibility documentation in 2016 or 2017. As of August 7, 2018, the information has not
been received.
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 Respondent. This Agreed Order shall have no
force or effect until the Effective Date.
2.
Respondent shall comply with the statutes,
rules, and/or permit conditions listed in the findings above.
3.
Within thirty (30) days of the Effective Date,
Respondent shall remove all demolition debris (i.e. painted concrete, roofing
materials, and process equipment), burn pile debris foundry slag and foundry waste
throughout the Foundry Site and dispose of it at a permitted solid waste
disposal facility. Also, Respondent
shall remove any unauthorized waste (empty hydraulic fluid containers and
garbage) deposited on the Monofill Site. Respondent indicated during a Settlement
Conference on February 1, 2019 that the referenced materials have been removed
and properly disposed. Within thirty
(30) days of removal of the solid waste Respondent shall submit to IDEM
disposal documentation.
4.
Respondent shall initiate closure activities at
the monofill in accordance with the “Proposed Closure
Plan (Revision 10.)” approved
by IDEM. Respondent must notify IDEM in
writing at least fifteen (15) days before the intended date to begin closure of
the monofill.
All closure activities in the approved closure plan, titled “Proposed
Closure Plan (Revision 1.0) dated June 13, 2019 must be completed no later than
180 days after receipt of the approval letter from IDEM.
5.
Respondent shall submit to IDEM a closure
certification document within 90 days after all closure activities have been
completed in Order 4 above.
6.
Within thirty (30) days of the of the Effective
Date, Respondent shall submit to IDEM a surety bond rider for the inflation
increase or documentation supporting revised cost estimates and a Standby Trust
Agreement. For the Standby Trust
Agreement, use the language that was enclosed in the Violation Letter dated
March 6, 2018.
7.
Upon Effective Date of the Agreed Order,
Respondent shall comply with Scrap Iron
Reclamation Approval dated March 19, 2015 and the Proposed Closure Plan (Revision 1.0) dated June 13, 2019, Conditions
C1.e. and C2.a.
According to Respondent’s submittal dated April 27, 2018, the leachate
seepage observed on the north side of the Monofill
Site had been corrected. This will be
field verified for compliance.
8.
Upon Effective Date of the Agreed Order,
Respondent shall comply with the Revised
Erosion and Sediment Control Plan dated April 18, 2017. Specifically, Respondent shall immediately
fix the damaged silt fences around the solid waste boundary, remedy the breach
observed in the side slope and the erosion rill on the east side of the Monofill Site; and remediate the foundry waste releases
from the breach on the east side and the foundry waste observed from the
outside slopes into the ditches around the west and north sides. Within fifteen (15) days of the Effective
Date, Respondent shall submit to IDEM the corrective actions that will be taken
with timeframes to comply with the Revised
Erosion and Sediment Control Plan.
9.
All submittals required by this Agreed Order,
unless Respondent is notified otherwise in writing by IDEM, shall be sent to:
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Christina Halloran, Enforcement Case
Manager |
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Office of Land Quality |
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Indiana Department of Environmental
Management |
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100 North Senate Avenue |
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Indianapolis, IN 46204-2251 |
10.
Respondent is assessed and agrees to pay a
civil penalty of Twenty Five Thousand Dollars ($25,000). Within thirty (30) days of the Effective
Date, Respondent shall pay a portion of this penalty in the amount of Five
Thousand Dollars ($5,000) to the Environmental Management Special Fund. In lieu of payment of the remaining civil
penalty, Respondent shall make a cash payment to the Indiana Finance Authority
("IFA") to fund a Supplemental Environmental Project
("SEP") of activities related to brownfield development at a
brownfield site ("Brownfield Site") in Kendallville, Indiana. Respondent will make a payment in the amount
of Twenty Thousand Dollars ($20,000) to fund SEP activities at the Brownfield
Site. Respondent shall make such payment
to the IFA within thirty (30) days of the Effective Date. Payment to the IFA satisfies Respondent's
obligation to undertake a SEP to offset a portion of the civil penalty assessed
in this matter. Implementation of this SEP will benefit the community by
rejuvenating neighborhoods, increasing the tax base, mitigating threats to
human health and the environment, and/or reducing blight. In the event that the civil penalty is not
paid within thirty (30) days of the Effective Date, Respondent shall pay interest
on the unpaid balance at the rate established by IC 24-4.6-1-101. The interest shall continue to accrue until
the civil penalty is paid in full.
The Brownfield Site at which some or all
of the SEP proceeds will be spent will be determined by the Brownfields Program
for a site located in Kendallville, Indiana. The designation of this
Brownfield Site to receive the SEP proceeds is agreed upon by the Complainant,
Respondent, and the IFA. The IFA will account for the SEP payment and the
Brownfields Program will oversee the work undertaken at the Brownfield Site
funded by the SEP proceeds. If SEP proceeds remain following a
determination by the Brownfields Program that no additional SEP proceeds are
needed at the Brownfield Site, the Brownfields Program will select another site
or sites in Kendallville at which work will be funded with the balance of the
SEP proceeds. The IFA will notify IDEM's Enforcement Case Manager when
SEP-funded activities at the Brownfield Site (and any other site at which
activities may be funded with SEP proceeds) are complete.
In the event that Respondent does not
make its SEP payment within thirty (30) days of the Effective Date, the full
amount of the civil penalty as stated in this paragraph, plus interest
established by IC 24-4.6-1-101 on the remaining amount, less the portion of the
civil penalty Respondent has already paid, will be due within fifteen (15) days
from Respondent's receipt of IDEM's notice to pay. Interest at the rate established by IC
24-4.6-1-101, shall be calculated on the amount due from the date which is
thirty (30) days after the Effective Date of this Agreed Order until the full
civil penalty is paid.
Payment of the SEP is payable by check
to the "Indiana Finance Authority."
The text "SEP-Kendallville" and the Case Numbers of this
action shall be included in the memo line of the check. The check shall be mailed to:
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Meredith Gramelspacher |
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Indiana Brownfields Program - SEP |
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100 N. Senate Avenue |
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Room 1275 |
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Indianapolis, Indiana 46204 |
11.
In the event the terms and conditions of the
following paragraphs are violated, Complainant may assess and Respondent shall
pay a stipulated penalty in the following amount:
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Paragraph |
Penalty |
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Order
paragraph #3 |
$100/week |
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Order
paragraph #4 |
$500/week |
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Order
paragraph #5 |
$100/week |
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Order
paragraph #6 |
$100/week |
12.
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 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.
13.
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:
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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 |
14.
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 13, above.
15.
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.
16.
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.
17.
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.
18.
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.
19.
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.
20.
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.
21.
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 EPA or any other
agency or entity.
22.
This Agreed Order shall remain in effect until
IDEM issues a Resolution of Case letter to Respondent.
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Department of Environmental Management |
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By: _________________________ |
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Linda L.
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Enforcement
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Office of
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Title: ________________________ |
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Date: __________________ |
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COUNSEL FOR INDIANA FINANCE |
COUNSEL FOR RESPONDENT |
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AUTHORITY |
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By:__________________________ |
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Director
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Printed: ______________________ |
Printed: ______________________ |
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Title: ________________________ |
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Date: _______________________ |
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COUNSEL &/OR AUTHORIZED |
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REPRESENTATIVE: |
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For the City of |
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By:__________________________ |
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Printed: ______________________ |
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Title: ________________________ |
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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
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Signed on
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Peggy Dorsey, Assistant Commissioner |
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Office of
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