STATE OF INDIANA

COUNTY OF MARION

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BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v.

CLM Pallet Recycling, Inc.,

Respondent.

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Case No. 2010-19406-A

 

 

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.  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, except a proceeding to enforce this 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 Indiana created by Indiana Code (“IC”) 13-13-1-1.

 

2.            Respondent is CLM Pallet Recycling, Inc. (“Respondent”), which owns and operates a stationary wood pallet and recycling plant with Draft Plant ID No. 059-00037, located at 3103 West 1000 North, in Fortville, Hancock County, Indiana (“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 (“NOV”) via Certified Mail to:

 

Mr. Charles Mong III, President &

Mr. Mark Loughery, Secretary

Registered Agent

CLM Pallet Recycling, Inc.

CLM Pallet Recycling, Inc.

6335 English Avenue

6335 English Avenue

Indianapolis, IN 46219

Indianapolis, IN 46219

 

 

5.            On January 25, 2010, an IDEM representative performed an inspection at the site in response to a complaint about fugitive dust.  As a result of the inspection, CLM Pallet Recycling, Inc. was instructed to submit an air operating permit application to determine the appropriate permit level for the site.

 

6.            On April 19, 2010, IDEM received an air permit application from Respondent.  IDEM representatives determined that Respondent’s permit level to be a Federally Enforceable State Operating Permit (FESOP).

 

7.            Based on information obtained during the inspection and review of the draft air permit completed by a representative of IDEM.  The following violations were identified:

 

a.         Pursuant to 326 IAC 2-5.1 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.

 

Respondent constructed a stationary wood pallet and recycling facility without first applying for and obtaining a construction permit, a violation of 326 IAC 2-5.1.

b.         Pursuant to 326 IAC 2-7-2 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.

 

Respondent has operated a stationary wood pallet and recycling facility without applying for and obtaining an operating permit, a violation of 326 IAC 2-7-2.

 

8.            The respondent will be issued a Federally Enforceable State Operating Permit (FESOP) F059-29179-00037.  The FESOP is currently in draft form.

 

9.            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 immediately comply with 326 IAC 2-5.1 and 326 IAC 2-7-2 and all the conditions of the FESOP 059-29179-00037 when issued.

 

3.            All submittals required by this Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall be sent to:

 

Mr. Anthony Rench, Compliance and Enforcement Manager

Compliance and Enforcement Branch – Mail Code 61-53

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

4.            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.  In the event that the civil penalty is not paid within thirty (30) 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.

 

5.            Respondent is assessed avoided permit fees in the amount of Four Hundred Dollars ($400.00).  Avoided permit fees are assessed for the period of 2008 and 2009, during which Respondent was operating without the required permit.  Said fee amount shall be due and payable to IDEM within thirty (30) days of the Effective Date.

 

6.            Civil penalties and permit fees are payable by check to “IDEM”.  A cover letter shall accompany the check specifying that $9,000.00 in civil penalties shall be deposited into the Environmental Management Special Fund and $400.00 in permit fees shall be deposited into the Title V Investment Fund.  Checks shall include the Case Number of this action and shall be mailed to:

 

Indiana Department of Environmental Management

Cashier – Mail Code 50-10C

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

7.            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 they are fully authorized to execute this Agreed Order and legally bind the party they represent.  No change in ownership, corporate, or partnership status of Respondent shall in any way alter its status or responsibilities under this Agreed Order.

 

8.            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.

 

9.            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.

 

10.         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.

 

11.         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.

 

12.         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.

 

13.         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.

 

14.         This Agreed Order shall remain in effect until IDEM issues a Resolution of Case letter to Respondent.

 

 

TECHNICAL RECOMMENDATION:

 

RESPONDENT:

Department of Environmental Management

 

CLM Pallet Recycling, Inc.

 

 

 

By:

 

 

By:

 

 

Craig Henry, Chief

 

Printed:

 

 

Compliance and Enforcement Section 4

 

Title:

 

 

Office of Air Quality

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

 

 

 

COUNSEL FOR COMPLAINANT:

 

COUNSEL FOR RESPONDENT:

For the Department of Environmental Management

 

 

 

 

 

By:

 

 

By:

 

 

Deputy Attorney General

 

 

 

 

 

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

 

DAY OF

 

, 2011.

 

 

For the Commissioner

 

 

 

Signed on January 13, 2011

 

Keith Baugues

 

Assistant Commissioner

 

Office of Air Quality

 

Indiana Department of Environmental Management