STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT

) SS: OF ENVIRONMENTAL MANAGEMENT

COUNTY OF MARION )

COMMISSIONER OF THE DEPARTMENT )

OF ENVIRONMENTAL MANAGEMENT, )

)

Complainant, )

)

v. ) Case No. 2000-9565-A

)

WESTWOOD LUMBER SALES, INC., )

)

Respondent. )

The Complainant and the 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.

1. Complainant is the Commissioner ("Complainant") of the Indiana Department of Environmental Management, a department of the State of Indiana created by IC 13-13-1-1.

2. Respondent is Westwood Lumber Sales, Inc. ("Respondent"), which owns and operates a pre-stained cedar side wall boards fabrication facility, identification number 003-00306, located at 1407 Bandelier Road in New Haven, Allen County, Indiana ("Site").

3. The Indiana Department of Environmental Management ("IDEM") has jurisdiction over the parties and the subject matter of this action.

4. Pursuant to IC 13-30-3-3, on October 27, 2000, IDEM issued a Notice of Violation via Certified Mail to:

Mr. M. Douglas Miller

President and Registered Agent

Westwood Lumber Sales, Inc.

P.O. Box 526

1407 Bandelier Road

New Haven, IN 46774

5. An inspection on August 9, 1999, was/were conducted at the Site by a representative of IDEM's Office of Air Quality (OAQ). The following violations were in existence or observed at the time of this inspection:

A. Pursuant to 326 IAC 2-1-3, a source or facility which has allowable emissions of twenty-five (25) tons or more per year of any regulated pollutant shall apply for and obtain a construction permit prior to commencing construction. This source, a pre-stained cedar side wall boards fabrication facility, was constructed in or around 1991 without first applying for and obtaining a construction permit, a violation of 326 IAC 2-1-3.

B. Pursuant to 326 IAC 2-1-4, a source or facility which has allowable emissions of twenty-five (25) tons or more per year of any regulated pollutant shall apply for and obtain an operating permit prior to commencing operation. This source noted in paragraph A above began operating without first applying for and obtaining an operating permit, a violation of 326 IAC 2-1-4.

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

• Pursuant to 326 IAC 2-7-4 a timely Part 70 application is one that is received within twelve (12) months after the source becomes subject to the Part 70 permit program. For applicable sources in existence on December 14, 1995, the deadline is December 13, 1996. For other sources, the deadline is twelve (12) months from the date the source first meets an applicability criterion of section 2 of this rule. This source failed to submit a timely Part 70 application because this source's Part 70 permit application was received on October 5, 1999, after the December 13, 1996 submission deadline, a violation of 326 IAC 2-7-4.

6. Respondent applied for a federally enforceable state operating permit (FESOP) on October 5, 1999. A FESOP number F003-11439-00306 was issued on September 15, 2000.

7. In recognition of the settlement reached, Respondent waives any right to administrative and judicial review of this Agreed Order.

1. This Agreed Order shall be effective ("Effective Date") when it is approved by the Complainant or her delegate, and has been received by the Respondent. This Agreed Order shall have no force or effect until the Effective Date.

2. Respondent shall comply with all the requirements of the FESOP and all subsequent amendments.

3. Respondent shall comply with all the requirements of 326 IAC 2-5.1.

4. All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:

Mr. Michael Stonik, Enforcement Case Manager

Office of Enforcement

Indiana Department of Environmental Management

100 N. Senate Avenue

P. O. Box 6015

Indianapolis, IN 46206-6015

5. Respondent is assessed a civil penalty of Twenty Six Thousand and Four Hundred Dollars ($26,400.00). Said penalty amount shall be due and payable to the Environmental Management Special Fund within 30 days of the Effective Date of this Agreed Order.

6. Civil penalty is payable by check to the Environmental Management Special Fund. Checks shall include the Cause Number of this action and shall be mailed to:

Cashier

IDEM

100 N. Senate Avenue

P. O. Box 7060

Indianapolis, IN 46207-7060

7. In the event that the civil penalty required by Order paragraph 5 of this Agreed Order, is not paid within thirty (30) days of the Effective Date of this Agreed Order, 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.

8. This Agreed Order shall apply to and be binding upon the Respondent, its successors and assigns. The Respondent's signatories to this Agreed Order certify that they are fully authorized to execute this document and legally bind the parties they represent. No change in ownership, corporate, or partnership status of the Respondent shall in any way alter its status or responsibilities under this Agreed Order.

9. In the event that any terms of the 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 the Agreed Order did not contain the invalid terms.

10. The 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.

11. This Agreed Order shall remain in effect until Respondent complied with all terms and conditions of this Agreed Order.

TECHNICAL RECOMMENDATION: RESPONDENT:

Department of Environmental Management Westwood Lumber Sales, Inc.

By: By:

David P. McIver

Chief, Air Section Printed:

Office of Enforcement

Title:

Date: Date:

COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:

Department of Environmental Management

By: By:

Office of Legal Counsel

Department of Environmental

Management

Date: Date:

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS DAY OF , 2001.

For the Commissioner:

Signed on April 27, 2001

Felicia A. Robinson

Assistant Commissioner

Office of Enforcement