STATE OF INDIANA

COUNTY OF MARION

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BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v.

E & B PAVING, INC.,

Respondent.

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Case No. 2018-25583-A

 

 

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 E & B Paving, Inc. (“Respondent”), which owns and operates the facility with Plant ID No. 093-00033 located at County Road 750 North in Springville, Lawrence 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:

 

Larry Canterbury, President & Registered Agent

E & B Paving, Inc.

286 W 300 N

Anderson, IN 46012

 

5.             Respondent owns and operates a stationary batch mix asphalt plant.

 

6.             During an investigation including an inspection on August 3, 2018 conducted by a representative of IDEM, the following violations were found:

 

a.       Pursuant to 326 IAC 2-8-3(h) and FESOP Permit 093-36899-00033 (“Permit”), issued April 27, 2016, Condition B.16, for the purposes of a FESOP renewal, a timely application is one that is submitted at least nine (9) months prior to the date of the expiration of Respondent’s existing Permit.

Based upon IDEM’s review, the FESOP permit for this source expired on July 8, 2018; accordingly, a renewal application was due nine (9) months prior to the permit expiration date.  IDEM did not receive a renewal application nine (9) months prior to the permit expiration date, in violation of 326 IAC 2-8-3(h) and Permit Condition B.16.

b.       Pursuant to 326 IAC 2-7-3, no Part 70 source may operate after the time that it is required to submit a timely and complete application except in compliance with a Part 70 permit issued under this rule.  A source can continue to operate without being in violation of this rule if it submits a timely and complete application.

 

Respondent operated without submitting a timely and complete Part 70 permit application, in violation of 326 IAC 2-7-3.

 

c.              Pursuant to Permit Condition D.1.10, Respondent shall perform PM and PM10 stack testing at least once every five (5) years from the date of the last valid compliance demonstration.

Respondent failed to perform PM and PM10 stack testing within 5 years of the date of the last valid stack test, in violation of Permit Condition D.1.10.

 

7.             A permit renewal application was submitted March 2, 2018, which is currently being processed as FESOP Renewal Permit 093-39689-00033.

 

8.             A stack test for PM and PM10 was conducted on September 18, 2018.

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 all terms and conditions of FESOP No. 093-36899-00033, issued on April 27, 2016, until such time as IDEM issues a FESOP renewal which supersedes this Operating Permit, or denies the FESOP renewal application received by IDEM on March 2, 2018.

 

3.             All submittals required by this Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall be sent to:

 

Lisa Hayhurst, Enforcement Case Manager

Compliance and Enforcement Branch – Mail Code 61-53

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 Four Thousand Nine Hundred Thirty Seven Dollars and Fifty Cents ($4,937.50).  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.             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:

 

IDEM Office of Legal Counsel

IGCN, Rm  N1307

100 N Senate Ave

Indianapolis, IN  46204

 

6.             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 their status or responsibilities under this Agreed Order.

 

7.             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.

 

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 their obligation to comply with the requirements of their 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 respondent complies with the terms and conditions of Order Paragraph 4, and IDEM issues a FESOP renewal which supersedes FESOP No. 093-36899-00033, or denies the FESOP renewal application received by IDEM on March 2, 2018.

 

 

TECHNICAL RECOMMENDATION:

 

RESPONDENT:

Department of Environmental Management

 

E & B Paving, Inc.

 

 

 

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

 

, 2019.

 

 

For the Commissioner

 

 

 

Signed on January 25, 2019

 

Matthew Stuckey, Deputy Assistant Commissioner

 

Office of Air Quality

 

Indiana Department of Environmental Management