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BEFORE
THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT |
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COMMISSIONER
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Complainant, |
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Case
No. 2006-15890-A |
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Shelly and Sands, Inc. d/b/a/ Mar-Zane, Inc., |
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Respondent. |
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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
2.
Respondent is Shelly and Sands, Inc. d/b/a Mar-Zane, Inc.
(“Respondent”), which operates the hot mix asphalt facility with Plant ID No.
057-03300 located at
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 August 12, 2006, IDEM issued a
Notice of Violation via Certified Mail to:
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Gerald
N. Little, President |
Matt
Kelley, Registered Agent |
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Shelly
and Sands, Inc. d/b/a
Mar-Zane, Inc. |
Shelly
and Sands, Inc. d/b/a
Mar-Zane, Inc. |
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5.
An inspection, on April 20, 2006, was 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 12-1-1(b)(1), the provisions of 40 CFR
60 were adopted by reference by the air pollution control board. Respondent’s asphalt production plant is
subjected to the requirements of the New Source Performance Standard (NSPS)
established by 40 CFR 60.90 Subpart I, which limits PM emissions to 0.04 grains
per dry standard cubic foot.
The emission test performed
on April 20, 2006, revealed an average PM emission of 0.057 grains per dry
standard cubic foot, a violation of 40 CFR 60.90 Subpart I.
b.
A retest was performed on July 6, 2006, and results were
found to be in compliance.
c.
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.
1.
Respondent shall comply with permit requirements which Respondent
was found to be in violation; as cited under 326 IAC 12-1-1(b)(1) and 326 IAC
2-8-4 and Section D.1.3 of FESOP permit # 057-18252-03300.
3.
Respondent shall purchase and install a settling chamber
prior to the beginning of the 2007 production season.
4.
Respondent shall replace all bags in baghouse prior to the
beginning of the 2007 production season.
5.
Respondent shall conduct emission sampling for particulate
matter and PM-10 emission in accordance with the requirement of 326 IAC3-6
prior to September 1, 2007.
6.
Respondent shall conduct particulate emission sampling for
particulate matter and PM-10 emission in accordance with the requirement of 326
IAC3-6 between June 15, 2011 and Sept 1, 2011.
7.
All submittals required by this Agreed Order, unless notified
otherwise in writing, shall be sent to:
Matthew Chaifetz, Enforcement Case Manager
Indiana Department of Environmental Management
Office of Enforcement – Mail Code 60-02
8.
Respondent is assessed a civil penalty of Nine Thousand
Dollars ($9,000.00). 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.
9.
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:
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Violation |
Penalty |
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Failure to
comply with Order paragraph 3 |
$500 per
week |
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Failure to
comply with Order paragraph 4 |
$500 per
week |
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Failure to
comply with Order paragraph 5 |
$500 per
week |
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Failure to
comply with Order paragraph 6 |
$500 per
week |
10.
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.
11.
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:
Indiana Department of
Environmental Management
Cashier’s Office - Mail
Code 50-10C
12.
In the event that the civil penalty required by Order
paragraph 8 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.
13.
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.
14.
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.
15.
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.
16.
This Agreed Order shall remain in effect until Respondent
has complied with all terms and conditions of this Agreed Order.
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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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David P. McIver Chief, Air Section |
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Office of Enforcement |
Printed:
__________________ |
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Title:
____________________ |
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Date:
______________________ |
Date:
_____________________ |
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COUNSEL
FOR COMPLAINANT: |
COUNSEL
FOR RESPONDENT: |
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Department
of Environmental Management |
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By:
________________________ |
By:
________________________ |
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Office of Legal Counsel |
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Date:
______________________ |
Date:
________________________ |
APPROVED
AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _____ DAY
OF _______________, 2006.
By the Commissioner:
Signed on December 29, 2006
Thomas W. Easterly
Commissioner