STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT
) SS: OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION )
COMMISSIONER OF THE DEPARTMENT )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
) CASE NO. 2000-10088-S and
v. ) 2000-10089-S
)
TITAN CONTRACTING, INC. AND )
CITY OF LINTON, )
)
Respondents. )
AGREED ORDER
The Complainant and the 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.
I. FINDINGS OF FACT
1. Complainant is the Commissioner (hereinafter referred to as "Complainant") of the Indiana Department of Environmental Management, a department of the State of Indiana created by IC 13-13-1-1.
2. Respondents are Titan Contracting, Inc., and the City of Linton (hereinafter referred to as "Respondents"), who caused or allowed a spill located at 1170 A Street, Linton, Greene County, Indiana (hereinafter referred to as the "Site").
3. The Indiana Department of Environmental Management ("IDEM") has jurisdiction over the parties and subject matter of this action.
4. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation via Certified Mail on February 5, 2001 to:
The Honorable Jimmie K. Wright, Mayor Steven Briscoe, Vice President
City of Linton Titan Contracting, Inc.
86 South Main Street P.O. Box 307, 7 Vista Drive
Linton, IN 47441 Oolitic, IN 47451
R. Bryan Nikirk, Registered Agent
Titan Contracting, Inc.
7 Vista Drive
Oolitic, IN 47451
5. Based on an investigation conducted by IDEM representatives on June 27, 2000, the following violations were observed:
A. Pursuant to IC 13-30-2-1(1), a person may not discharge, emit, cause, allow, or threaten to discharge, emit, cause, or allow any contaminant or waste into the environment or any publicly owned treatment works in any form that causes or would cause pollution. During the above noted investigation, chlorinated water was discharged into a tributary leading to the Bee Hunter Ditch.
B. Pursuant to 327 IAC 2-6.1-7, any person who operates, controls, or maintains a facility from which a spill occurs shall, upon discovery of a reportable spill to the soil or surface waters of the state, contain the spill to prevent additional spilled material from entering the waters of the state, respond to the spill, and notify IDEM within two (2) hours if new or updated spill report information becomes known that indicates a significant increase in the likelihood of damage to the waters of the state. Chlorinated water was discharged into a tributary leading to the Bee Hunter Ditch and was not properly reported, contained or responded to.
C. Pursuant to 327 IAC 2-1-6(a)(1)(D), all waters at all times and at all places shall meet the minimum conditions of being free from substances, materials, floating debris, oil, or scum attributable to municipal, industrial, agricultural, and other land use practices or other discharges which are in amounts sufficient to be acutely toxic, or to otherwise severely injure or kill aquatic life. During the above noted investigation, chlorinated water was discharged into a tributary leading to the Bee Hunter Ditch, resulting in a fish kill.
prohibited unless in conformity with a valid NPDES permit obtained prior to the
discharge. During the above noted investigation, chlorinated water was discharged into a tributary leading to the Bee Hunter Ditch, without a valid NPDES permit.
7. In recognition of the settlement reached, Respondents 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 approved by the Complainant or her delegate, and has been received by the Respondents. This Agreed Order shall have no force or effect until the Effective Date.
2. Respondents shall submit a Spill Response Plan to IDEM within thirty (30) days of the Effective Date of this Agreed Order.
3. All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:
Jennifer Andres, Enforcement Case Manager
Office of Enforcement
Indiana Department of Environmental Management
100 North Senate Avenue
P.O. Box 6015
Indianapolis, Indiana 46206-6015
4. Respondents are assessed a civil penalty of $7,500.00. Said penalty amount shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the Effective Date of this Agreed Order. Respondent Titan Contracting, Inc. has agreed to pay the entire civil penalty.
IDNR Division of Fish and Wildlife
Room W-273, IGCS
402 West Washington Street
Indianapolis, IN 46204
Respondents shall provide IDEM documentation of the reimbursement immediately upon payment.
5. In the event the following terms and conditions are violated, the Complainant may assess and the Respondents shall pay a stipulated penalty in the following amounts:
Violation
PenaltyOrder Condition #2 $100 per week submittal is late
seeking any additional relief against the Respondents for violation of the Agreed Order. In lieu of assessment of any of the stipulated penalty given above, the Complainant may seek any other remedies or sanctions available by virtue of Respondent's violation of this
Agreed Order, or Indiana Law, including but not limited to civil penalties pursuant to IC 13-30-4.
7. Civil and stipulated penalties are 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 North Senate Avenue
P.O. Box 7060
Indianapolis, Indiana 46207-7060
8. In the event that the civil penalty required by Order paragraph 4 is not paid within thirty (30) days of the Effective Date of this Agreed Order, Respondents 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.
9. This Agreed Order shall apply to and be binding upon the Respondents, its officers, directors, principals, agents, successors, subsidiaries, and assigns. The Respondents' 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 Respondents shall in any way alter its status or responsibilities under this Agreed Order.
10. 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 the Agreed Order did not contain the invalid terms.
11. The Respondents shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights are transferred. Respondents shall ensure that all contractors, firms and other persons performing work under this Agreed Order comply with the terms of this Agreed Order.
TECHNICAL RECOMMENDATION: RESPONDENT:
Department of Environmental Management
By:___________________________ By:____________________________
Paul Higginbotham, Chief
Solid Waste Section Printed:________________________
Office of Enforcement
Title:__________________________
Date:_________________________ Date:__________________________
COUNSEL FOR COMPLAINANT: RESPONDENT:
Department of Environmental Management
By:___________________________ By:____________________________
Office of Legal Counsel
Department of Environmental Management Printed:________________________
Title:__________________________
Date:__________________________ Date:___________________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS __________ DAY OF __________________, 2001.
For the Commissioner:
Signed on May 11, 2001
_________________________
Felicia A. Robinson
Assistant Commissioner
Office of Enforcement