STATE OF INDIANA

COUNTY OF MARION

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SS:

BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v.

BROOKS CONSTRUCTION COMPANY, INC.

Respondent.

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Case Nos.      2003-12866-A
                        2003-13066-A
                        2003-13447-A
                        2003-13665-A
                        2004-13837-A
                        2004-14325-A
                        2005-14502-A

 

 

AGREED ORDER

 

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.

 

I.  FINDINGS OF FACT

 

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 Brooks Construction Company, Inc. ("Respondent"), which owns and operates a stationary batch hot mix asphalt plant with Plant ID No. 141-03121, located at 727 S. Beiger Street in Mishawaka, St. Joseph County, Indiana (“Site 1”).

 

3.                  Respondent owns and operates a portable hot mix asphalt plant with Plant ID No. 039-03325, located at 18130 U.S. 20 in Goshen, Elkhart County, Indiana (“Site 2”).

 

4.                  Respondent owns and operates a portable hot mix asphalt batch plant with Plant ID No. 113-03265, located at 819 N. Orange Street in Albion, Noble County, Indiana (“Site 3”).

 

5.                  Respondent owns and operates a portable drum mix asphalt plant with Plant ID No. 003-05190, located at 5536 Hoagland Road in Poe, Allen County, Indiana (“Site 4”).

 

6.                  Respondent owns and operates a stationary hot mix asphalt plant with Plant ID No. 003-03112, located at 3930 Hardrock Road in Fort Wayne, Allen County, Indiana (“Site 5”).

 

7.                  Respondent owns and operates 5 portable hot mix asphalt plant with Plant ID No. 033-03303, located at 2059 State Road 8 West in Auburn, Dekalb County, Indiana (“Site 6”).

 

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

 

9.                  Pursuant to IC 13-30-3-3, on June 25, 2003, July 1, 2003, March 29, 2004 and March 30, 2004, IDEM issued Notices of Violation via Certified Mail to:

 

John R. Brooks, President
Brooks Construction Company, Inc.
6525 Ardmore Avenue
P.O. Box 9560
Fort Wayne, IN  46899

Andrew F. Brooks, Registered Agent
Brooks Construction Company, Inc.
6525 Ardmore Avenue
P.O. Box 9560
Fort Wayne, IN  46899

 

10.             Pursuant to IC 13-30-3-3, on February 15, 2005 and March 23, 2005, IDEM issued Notices of Violation via Certified Mail to:

 

Andrew F. Brooks, President and Registered Agent
Brooks Construction Company, Inc.
6525 Ardmore Avenue
P.O. Box 9560
Fort Wayne, IN  46899

 

11.             A records review, was conducted of Site 1 by a representative of IDEM’s Office Air Quality (OAQ).  The following violations were in existence or observed at the time of this record review:

 

a.                  Pursuant to 326 IAC 2-8-3(h) and Condition B.17 of Federally Enforceable State Operating Permit (FESOP) No. F141-8351-03121, a FESOP renewal application must be submitted to IDEM at least nine (9) months prior to the date of expiration of a source’s existing permit.

The Respondent failed to submit a FESOP renewal application to IDEM at least nine (9) months prior to June 19, 2002, the expiration date of FESOP No. F141-8351-03121, a violation of 326 IAC 2-8-3(h) and Condition B.17 of FESOP No. F141-8351-03121.

 

12.             A records review, was conducted of Site 2 by a representative of IDEM’s Office Air Quality (OAQ).  The following violations were in existence or observed at the time of this record review:

 

a.                  Pursuant to 326 IAC 2-8-3(h) and Condition B.17 of FESOP No. F039-5406-03325, a FESOP renewal application must be submitted to IDEM at least nine (9) months prior to the date of expiration of a source’s existing permit.

The Respondent failed to submit a FESOP renewal application to IDEM at least nine (9) months prior to July 24, 2002, the expiration date of FESOP No. F039-5406-03325, a violation of 326 IAC 2-8-3(h) and Condition B.17 of FESOP No. F039-5406-03325.

IDEM received the renewal application on July 21, 2003 and issued FESOP renewal 039-17738-03325 on July 14, 2004.

 

13.             A records review, was conducted of Site 3 by a representative of IDEM’s Office Air Quality (OAQ).  The following violations were in existence or observed at the time of this record review:

 

a.                  Pursuant to 326 IAC 2-8-5 and Condition D.1.9 of FESOP No. F113-14047-03265, the Respondent shall perform PM, PM10 and opacity testing on the mixing and drying operation no later than 90 days from the issuance of the permit.  The permit was issued on November 20, 2002 making the deadline for testing February 20, 2003.

The Respondent did not perform the required testing until November 29, 2004, a violation of Condition D.1.9 of FESOP No. F113-14047-03265.

 

14.             A records review, was conducted of Site 4 by a representative of IDEM’s Office Air Quality (OAQ).  The following violations were in existence or observed at the time of this record review:

 

a.                  Pursuant to 326 IAC 2-8-3(h) and Condition B.17 of FESOP No. F003-10386-05190, a FESOP renewal application must be submitted to IDEM at least nine (9) months prior to the date of expiration of a source’s existing permit.

The Respondent failed to submit a FESOP renewal application to IDEM at least nine (9) months prior to March 11, 2004, the expiration date of FESOP No. F003-10386-05190, a violation of 326 IAC 2-8-3(h) and Condition B.17 of FESOP No. F003-10386-05190.

IDEM received the renewal application on May 6, 2004 and issued FESOP renewal F003-19156-05190 on September 1, 2004.

 

a.                  Pursuant to 326 IAC 2-8-5 and Condition B.12 of FESOP No. F003-10386-05190, the Respondent must submit an annual compliance certification report which addresses the status of the source’s compliance with the terms and conditions of the FESOP by April 15 of each year to cover the time period from January 1 to December 31 of the previous year.

The Respondent failed to submit the annual compliance certification for the year 2002 by April 15, 2003, a violation of Condition B.12 of FESOP No. F003-10386-05190.

IDEM received the 2002 annual compliance certification on May 6, 2004.

 

15.             A compliance test, on September 30, 2004 was conducted at Site 5 and results were reviewed by a representative of IDEM’s Office Air Quality (OAQ).  The following violations were in existence or observed at the time of this test:

 

a.                  Pursuant to 326 IAC 2-2, 326 IAC 2-8-4 and Condition D.1.3(a) of FESOP No. F003-14035-03112 and F003-19122-03112, PM emissions from batch-mix and drum-mix aggregate mixing and drying shall be limited to 0.030 pounds of PM emitted per ton of asphalt produced.

The Respondent demonstrated PM emissions from the batch Aggregate Rotary Dryer #4 during the test to be an average of 0.032 pounds of PM emitted per ton of asphalt produced, a violation of permit F003-14035-03112 and F003-19122-03112 conditions D.1.3(a).

 

16.             A compliance test, on October 8, 2004 was conducted at Site 6 and observed by a representative of IDEM’s Office Air Quality (OAQ).  The following violations were in existence or observed at the time of this test:

 

a.                  Pursuant to 326 IAC 12 and Condition D.1.5 of FESOP No. F033-14037-03303, PM emissions from the asphalt plant shall not exceed 0.04 grains per dry standard cubic foot (gr/dscf).

Performance testing of PM from the dry mixer/dryer #2 demonstrated averaged PM emissions of 0.13 gr/dscf, a violation of 326 IAC 12 and Condition D.1.5 of F033-14037-03303.

Respondent conducted a retest on November 8, 2004 which demonstrated compliance with the PM limit.

 

17.             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 the Complainant or his delegate, and has been received by the Respondent.  This Agreed Order shall have no force or effect until the Effective Date.

 

2.                  Respondent shall conduct compliance testing at Site 5 by May 31, 2005 to determine compliance status for PM and PM10 emissions specified in Condition D.1.3(a) of permits F003-14035-03112 and F003-19122-03112.

 

3.                  Respondent is assessed a civil penalty of Twenty-Seven Thousand Two Hundred Dollars ($27,200).  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.

 

4.                  In the event the terms and conditions of the following paragraphs are violated, the Complainant may assess and the Respondent shall pay a stipulated penalty in the following amount:

 

Violation
Failure to comply with Order paragraph 2

Penalty
$750 per week

 

 

 

 

5.                  Stipulated penalties shall be due and payable within thirty (30) days after Respondent receives written notice that the Complainant has determined a stipulated penalty is due.  Assessment and payment of stipulated penalties shall not preclude the Complainant from seeking any additional relief against the Respondent for violation of the Agreed Order.  In lieu of any of the stipulated penalties 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.

 

6.                  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:

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 3 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 has complied with all terms and conditions of this Agreed Order.

 

TECHNICAL RECOMMENDATION:

 

RESPONDENT:

Department of Environmental Management

 

Brooks Construction Company, Inc.

 

 

 

By:

 

 

By:

 

 

David P. McIver

 

Printed:

 

 

Chief, Air Section

 

Title:

 

 

Office of Enforcement

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

 

 

 

COUNSEL FOR COMPLAINANT:

 

COUNSEL FOR RESPONDENT:

Department of Environmental Management

 

 

 

 

 

By:

 

 

By:

 

 

Office of Legal Counsel

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

 

MANAGEMENT THIS

 

DAY OF

 

, 200

 

.

 

 

 

 

For The Commissioner:

 

 

 

 

 

Signed on June 23, 2005

 

 

Matthew T. Klein

 

 

Assistant Commissioner for

 

 

Compliance and Enforcement