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STATE OF |
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BEFORE THE INDIANA
DEPARTMENT |
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COMMISSIONER OF THE
DEPARTMENT Complainant, v. HORNING ROOFING, LLC
D/B/A HORNING ROOFING & SHEET METAL COMPANY, Respondent. |
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AGREED ORDER
Complainant and 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 (“IDEM”), a department of the State of
2. Respondent
is Horning
Investments, LLC d/b/a Horning Roofing & Sheet Metal Company (“Respondent”), which owns and operates a construction
company, located at 2340 Enterprise Park Place, Suite A, in Indianapolis, Marion
County, Indiana (the “Site”).
3. IDEM
has jurisdiction over the parties and the subject matter of this action.
4.
Pursuant to IC
13-30-3-3, IDEM issued a Notice of Violation, via Certified Mail to:
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Horning Investments, LLC d/b/a Horning Roofing
& Sheet Metal Company |
Horning Investments, LLC d/b/a Horning Roofing
& Sheet Metal Company |
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Mr. John B. Urbahns, Registered Agent |
Mr. Joe Guidone, Site Supervisor |
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5. Pursuant
to IC 13-30-2-1, a person may not discharge, emit, cause, allow, or threaten to
discharge, emit, cause, or allow any contaminant or waste, including any
noxious odor either alone or in combination with contaminants from other
sources, into the environment in any form that causes or would cause pollution
that violates or would violate rules, standards, or discharge or emission
requirements adopted by the appropriate board under the environmental
management laws.
Pursuant
to IC 13-18-4-5, it is unlawful for any person to throw, run, drain, or
otherwise dispose into any of the streams or waters of Indiana; or cause, permit,
or suffer to be thrown, run, drained, allowed to seep, or otherwise disposed
into any waters; any organic or inorganic matter that causes or contributes to
a polluted condition of any waters, as determined by a rule of the board
adopted under sections IC 13-18-4-1 and IC 13-18-4-3.
Pursuant
to 327 IAC 2-1-6, all waters at all times and at all places, including the
mixing zone, 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 that produce
color, visible oil sheen, odor, or other conditions in such degree as to create
a nuisance, or which are in amounts sufficient to be acutely toxic to, or to otherwise
severely injure or kill aquatic life, other animals, plants, or humans.
An
investigation conducted on August 15, 2008 by IDEM staff, indicated that a
spill of a concentrated industrial solvent degreaser that contains 90%
D-Limonene and called Big Orange in a quantity of approximately 70 gallons
entered waters of the State called Wilson Lateral and Nash Trucksess Legal
Drain near Brownsburg High School, causing water degradation and fish kill, in
violation of 327 IAC 2-1-6.
6. Pursuant
to 327 IAC 2-6.1-7, any person who operates, controls, or maintains any mode of
transportation or facility from which a spill occurs shall, upon discovery of a
reportable spill to the soil or surface waters of the state, do the following:
a. contain
the spill, if possible, to prevent additional spilled material from entering
the waters of the state.
b. undertake
or cause others to undertake activities needed to accomplish a spill response.
c. as
soon as possible, but within two hours of discovery, communicate a spill report
to the Department of Environmental Management, Office of Environmental Response
at 1-888-233-7745.
d. submit
to the Department of Environmental Management a written copy of the spill
report, if requested in writing by the department.
e. except
from modes of transportation other than pipelines, exercise due diligence and
document attempts to notify the following:
i. for
spills to surface water that cause damage, the nearest affected downstream
water user located within ten miles of the spill and in the state of
ii. for
spills to soil outside the facility boundary, the affected property owner or
owners, operator or operators, or occupant or occupants.
Pursuant
to 327 IAC 2-6.1-4(15), a spill is defined as any unexpected, unintended,
abnormal, or unapproved dumping, leakage, drainage seepage, discharge or other
loss of petroleum, hazardous and/or otherwise objectionable substance which
enters or threatens to enter the waters of the state.
An
investigation conducted on August 15, 2008 by IDEM staff, indicated that a
spill of a concentrated industrial solvent degreaser that contains 90%
D-Limonene and called Big Orange in a quantity of approximately 70 gallons
entered waters of the State called Wilson Lateral and Nash Trucksess Legal
Drain near Brownsburg High School, causing water degradation and fish kill.
Respondent failed to take timely action to contain the spill, failed to
undertake timely spill response, and failed to correctly communicate the extent
of the spill to IDEM, in violation of 327 IAC 2-6.1-7, and 327 IAC 2-6.1-4(15).
7. 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
Complainant or Complainant’s delegate, and has been received by
Respondent. This Agreed Order shall have
no force or effect until the Effective Date.
2. Respondent shall comply with all rules and statutes cited
above at issue.
3. Upon the Effective Date, Respondent shall provide adequate training
to its employees on the proper handling and disposal of chemicals.
4. Respondent
shall, within ten days of the completion of training, submit documentation of
completion to IDEM’s Office of Enforcement at the address in paragraph 6.
5. Upon
completion of implementation of the training required by Order Paragraph 3,
Respondent shall be subject to stipulated penalties for a period of one year,
as described in Order Paragraph 8 for any water quality degradation or spill
rule violation (327 IAC 2-6.1-7).
6. All
submittals required by this Agreed Order, unless Respondent is notified
otherwise in writing by IDEM, shall be sent to:
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Jamal Naas, Enforcement Case Manager |
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Indiana
Department of Environmental Management |
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Office
of Enforcement – Mail Code 60-02 |
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7. Respondent
is assessed a civil penalty of Seven Thousand Dollars ($7,000). Said penalty amount shall be due and payable
to the Environmental Management Special Fund within forty-five (45) days of the
Effective Date. In the event that the
civil penalty is not paid within forty-five (45) days of the Effective Date,
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. In
the event the terms and conditions of the following paragraphs are violated,
Complainant may assess and Respondent shall pay a stipulated penalty in the
following amount:
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Paragraph |
Violation |
Stipulated Penalty |
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3 |
Failure to provide adequate training to employees
on proper handling and disposal of chemicals. |
$500 per violation per week |
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4 |
Failure to notify IDEM, within ten days of task
completion. |
$500 per week late |
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5 |
Causing water quality degradation during the period
of one year after completing the training. |
$10,000 per violation |
9. Stipulated
penalties shall be due and payable within thirty (30) days after Respondent
receives written notice that Complainant has determined a stipulated penalty is
due. Assessment and payment of
stipulated penalties shall not preclude Complainant from seeking any additional
relief against Respondent for violation of this Agreed Order. In lieu of any of the stipulated penalties
set out above, 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.
10. 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:
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Indiana
Department of Environmental Management |
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Cashier
– Mail Code 50-10C |
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11. This
Agreed Order shall apply to and be binding upon Respondent and its successors
and assigns. Respondent’s signatories to
this Agreed Order certify that he is fully authorized to execute this Agreed
Order and legally bind the party he represents.
No change in ownership, corporate, or partnership status of Respondent shall
in any way alter its status or responsibilities under this Agreed Order.
12. 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.
13. 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.
14. 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 Respondent pursuant to this Agreed
Order, shall not in any way relieve Respondent of its obligation to comply with
the requirements of its applicable permit or any applicable Federal or State
law or regulation.
15. Complainant does not, by
its approval of this Agreed Order, warrant or aver in any manner that
Respondent’s 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.
Additionally, IDEM or anyone acting on its behalf shall not be held
liable for any costs or penalties Respondent may incur as a result of
Respondent’s efforts to comply with this Agreed Order.
16. 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.
17. Nothing in this Agreed
Order shall prevent IDEM (or anyone acting on its behalf) from communicating
with the 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
Respondent may incur as a result of such
communications with the EPA or any other agency or entity.
18. This Agreed Order shall
remain in effect until Respondent complies with the terms of Order Paragraph Nos.
3 through 10 and IDEM issues a Resolution of Case letter.
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TECHNICAL RECOMMENDATION: |
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RESPONDENT: |
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Department of Environmental Management |
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Horning Investments, LLC d/b/a Horning Roofing
& Sheet Metal Company |
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By: |
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By: |
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Mark W. Stanifer, Chief |
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Printed: |
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Water Enforcement Section |
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Office of Enforcement |
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COUNSEL FOR COMPLAINANT: |
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COUNSEL FOR RESPONDENT: |
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For the Department of Environmental Management |
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By: |
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Deputy Attorney General |
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APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF
ENVIRONMENTAL |
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MANAGEMENT THIS |
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DAY
OF |
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, 2008. |
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For the Commissioner: |
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Signed on October 17, 2008 |
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Robert B. Keene |
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Assistant Commissioner |
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Office of Legal Counsel and Enforcement |
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