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STATE OF
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BEFORE THE
INDIANA DEPARTMENT OF |
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COUNTY OF
MARION |
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ENVIRONMENTAL
MANAGEMENT |
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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 Nos. 2018-25690-S, |
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2018-25691-S |
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tanners creek development 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 Tanners Creek Development LLC
(“Respondent”) which owns and/or operates the properties identified as Parcel
ID numbers 15-07-22-900-026.001-013, 15-07-23-202-003.002-013, and 15-07-23-202-020.000-026,
located in Lawrenceburg, IN (“Site”).
3.
IDEM has jurisdiction over the parties and the
subject matter of this action.
4.
Respondent waives issuance of a Notice of
Violation and the settlement period of sixty (60) days as provided for by
Indiana Code IC 13-30-3-3.
5.
Tanners Creek Generating Station was a coal
fired electrical power plant located at the Site. The plant began operating in
approximately 1951 and ceased operating on May 31, 2015. Subsequently, the Site,
including the plant, was sold to Tanners Creek Development LLC, an affiliate of
Commercial Development Co., Inc. (“CDC”). EnviroAnalytics Group LLC and
Industrial Demolition LLC, also affiliates of CDC, have been doing demolition
of the plant site since 2016.
6.
IDEM staff inspected the former Tanners Creek Generating
Station located at 214 AEP Drive where coal combustion waste was disposed. A
low area approximately two (2) acres in size with a depth of approximately five
(5) feet of coal combustion waste is located on the east side of the property
(“Area 1”) (See Exhibit A attached hereto).
7.
IDEM staff inspected the former Gibbco, Inc. stationary
wet-bottom boiler slag processing operation located at 901 AEP Drive regarding
the use and/or disposal of coal combustion waste. Approximately seventeen (17)
acres appears to be covered with a minimum of approximately two (2) feet of
coal combustion waste (“Area 2”) (See Exhibit A
attached hereto). There are portions of Area 2 that contain coal combustion
waste at depths as much as twenty (20) feet. Sparse vegetation was observed
growing in the waste.
8.
Based on an investigation including an inspection
conducted by representatives of IDEM on October 10, 2018, the following
violations were found:
a.
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 in the inspection, an open dump exists at Areas 1 and 2 of the Site. Areas
1 and 2 do not fulfill the requirements of a legally acceptable land disposal
method and are established and maintained without cover and without regard to
the possibilities of contamination of surface or subsurface water resources. While it is acknowledged these conditions
existed prior to Respondent owning the Site, Respondent needed to remedy these
conditions as soon as practicable after acquiring the Site.
b.
Pursuant to 329 IAC 10-4-4(a), 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 conditions 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; or
(B)
other methods as
approved by the commissioner.
(2)
Eliminating any threat to human health or the
environment.
As
noted in the inspection, an open dump exists at Areas 1 and 2 of the Site and Respondent
has not complied with the requirements of 329 IAC 10-4-4(a)(1) and (2). Areas 1
and 2 do not fulfill the requirements of a legally acceptable land disposal
method and are established and maintained without cover and without regard to
the possibilities of contamination of surface or subsurface water resources.
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.
Within ninety (90) days of the Effective Date,
Respondent shall prepare and submit to IDEM a closure/post closure plan for Areas
1 and 2 of the Site for review and approval.
Respondent shall submit three (3) hard copies and one (1) complete copy
of the entire document on CD, in PDF format no greater than 100 megabytes per
file. Those plans shall be in accordance
with the provisions of 329 IAC 10-30 and 10-31 for Restricted Waste Sites Type
I unless IDEM approves otherwise in writing. The closure/post closure plan may,
at Respondent’s option, include a provision for removing all coal combustion
waste from Area 1 and placing it in Area 2. However, the closure/post closure
plan is subject to IDEM approval.
The closure/post closure plan shall
include an implementation and completion schedule, including specific milestone
dates.
3.
Respondent, upon receipt of written
notification from IDEM of its approval of those plans, shall immediately
implement the approved closure/post closure plan and adhere to the milestone
dates therein. The approved closure/post closure plan shall be incorporated
into this Agreed Order and shall be deemed an enforceable part thereof.
4.
In the event IDEM determines that any plan
submitted by Respondent is deficient or otherwise unacceptable, Respondent
shall revise and resubmit the plan to IDEM in accordance with IDEM’s notice.
After three (3) submissions of such plan by Respondent, IDEM may modify and
approve any such plan and Respondent must either: 1) implement the plan as
modified by IDEM; or 2) request administrative review of the modified and approved
plan before the Office of Environmental Adjudication (“OEA”) in accordance with
IC 4-21.5. The approved plan, or if
applicable, any plan resulting from review under IC 4-21.5, shall be
incorporated into this Agreed Order and shall be deemed an enforceable part
thereof.
5.
Within sixty (60) days of approval of the plans,
Respondent shall demonstrate to IDEM financial assurance for closure and post
closure care of Areas 1 and 2 at the Site in accordance with 329 IAC 10-39 and
as applicable should wastes be left in place.
6.
All submittals required by this Agreed Order,
unless Respondent is notified otherwise in writing by IDEM, shall be sent to:
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Debbie
O’Brien, 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 |
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As
to Respondent: |
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Eric
Lemp, Esq. |
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General
Counsel for |
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Commercial
Development Co., Inc. |
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Environmental
Liability Transfer, Inc. |
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EnviroAnalytics Group LLC |
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1515
Des Peres Rd. – Suite 300 |
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Saint
Louis, MO 63131 |
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(314)835-2801 |
7.
Respondent is assessed and agrees to pay a
civil penalty of fourteen thousand dollars ($14,000). 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”.
8.
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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Order
Paragraph Number |
Violation |
Penalty
Amount |
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2 |
Failure
to submit closure/post closure plan, within given time period. |
$250
per each week late |
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3 |
Failure
to implement the approved closure/post closure plan, and/or meet any
milestone date set forth therein. |
$250
per each week late |
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5 |
Failure
to demonstrate financial assurance for closure/post closure. |
$250
per each week late |
9.
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.
10.
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 46204-2251 |
11.
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 10, above.
12.
Force majeure, for purposes of this Agreed
Order, is defined as any event arising from causes totally beyond the control
and without fault of Respondent that delays or prevents the performance of any
obligation under this Agreed Order despite Respondent’s best efforts to fulfill
the obligation. The requirement that Respondent exercise “best efforts to fulfill
the obligation” includes using best efforts to anticipate any potential force
majeure event and best efforts to address the effects of any potential force
majeure event: (1) as it is occurring;
and (2) following the potential force majeure event, such that the delay is
minimized to the greatest extent possible. Force majeure does not include: (1) changed business or economic conditions;
(2) financial inability to complete the work required by this Agreed Order; or
(3) increases in costs to perform the work.
Respondent shall notify IDEM by calling
the case manager within three (3) calendar days and by writing no later than
seven (7) calendar days after it has knowledge of any event which Respondent
contends is a force majeure. Such notification shall describe: (1) the
anticipated length of the delay; (2) the cause or causes of the delay; (3) the
measures taken or to be taken by Respondent to minimize the delay; and (4) the
timetable by which these measures will be implemented. Respondent shall include
with any notice all available documentation supporting its claim that the delay
was attributable to a force majeure. Failure to comply with the above
requirements shall preclude Respondent from asserting any claim of force
majeure for that event. Respondent shall have the burden of demonstrating that
the event is a force majeure. The decision of whether an event is a force
majeure shall be made by IDEM.
If a delay is attributable to a force
majeure, IDEM shall extend, in writing, the time period for performance under
this Agreed Order, by the amount of time that is directly attributable to the
event constituting the force majeure.
13.
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.
14.
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.
15.
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.
16.
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.
17.
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.
18.
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 this Agreed Order.
19.
This Agreed Order shall remain in effect until Respondent
has complied with all terms and conditions of this Agreed Order and IDEM issues
a Resolution of Case letter to Respondent.
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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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Linda L.
McClure, Chief |
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Enforcement
Section |
Printed: ______________________ |
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Office of
Land Quality |
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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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APPROVED AND
ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT
THIS |
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For the
Commissioner: |
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May 8, 2019 |
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Peggy Dorsey, Assistant Commissioner |
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Office of
Land Quality |
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