Respondents Names: Pam and William Oesterling

Case Number: 2019-26655-A

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 Pam and William Oesterling (“Respondents”), who own property located at 25141 State Road 46 in Batesville, Franklin County, Indiana (“Site”).

3. IDEM has jurisdiction over the parties and the subject matter of this action.

Pam and William Oesterling

24053 Vote Road

Batesville, Indiana 47006

4. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation (“NOV”) via certified mail to:

5. Based on IDEM’s review, the following violations were in existence or identified by a representative of IDEM’s Office of Air Quality (“OAQ”).

a. Pursuant to environmental rule 326 IAC 4-1, open burning is prohibited unless exempted, allowed by rule, or an approval is attained.

Respondents conducted open burning of non-approved materials including construction and demolition waste at the Site on November 19, 2019, in violation of environmental rule 326 IAC 4-1.

b. Pursuant to environmental rule 326 IAC 14-10, Respondents shall submit notification of a demolition activity in accordance with 326 IAC 14-10-3.

Respondents failed to submit notification of a demolition activity for the partial demolition of a non-residential structure at the Site in accordance with 326 IAC 14-10-3, in violation of environmental rule 326 IAC 14-10.

6. Orders of the Commissioner are subject to administrative review by the Office of Environmental Adjudication under IC 4-21.5; however, in recognition of the settlement reached, Respondents acknowledge notice of this right and 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 adopted via signature by Complainant or Complainant’s delegate, and the adopted Agreed Order has been received by Respondents. This Agreed Order shall have no force or effect until the Effective Date. This offer to settle the allegations contained in this Agreed Order does not bind or obligate the parties of this enforcement action if the Agreed Order is not adopted.

2. Respondents are assessed a civil penalty of Five Hundred Dollars ($500.00). Respondents shall pay said penalty amount no later than fifteen (15) days after the Effective Date (“Due Date”). In the event that the civil penalty is not paid by the Due Date, Respondents shall pay interest on the unpaid balance at the rate established by IC 24-4.6-1-101.

3. In the event the terms and conditions of this Agreed Order are violated, Complainant may seek additional relief.

4. 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:

Indiana Department of Environmental Management

Accounts Receivable

IGCN, Room 1340

100 North Senate Avenue

Indianapolis, IN 46204

5. This Agreed Order shall 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 status of Respondents shall in any way alter their status or responsibilities under this Agreed Order.

6. 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.

7. 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 its applicable permit or any applicable Federal or State law or regulation.

8. 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.

9. 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.

10. Nothing in this Agreed Order shall prevent IDEM or anyone acting on its behalf from communicating with the United States Environmental Protection Agency (“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 Respondents may incur as a result of such communications with the EPA or any other agency or entity.

11. The parties were free to consult with their respective counsel regarding entry into this Agreed Order to the extent each deemed necessary.

TECHNICAL RECOMMENDATION:			RESPONDENT:*
Department of Environmental Management			Pam and William Oesterling
By:			By:
	David P. McIver, Chief		Printed:
	Enforcement Section		Title:
	Office of Air Quality
			Date:
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS		DAY OF		, 2020.
			For the Commissioner:
			Signed on April 24, 2020
			Matthew Stuckey, Deputy Assistant Commissioner
			Office of Air Quality Indiana Department of Environmental Management

_____________________

* In the event that Respondents do not accept the settlement offer contained in this Agreed Order, IDEM notes that this document is a qualified offer of settlement, and therefore Rule 408 of Indiana Rules of Evidence applies to this document, rendering it inadmissible.