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.

TEMPLE & TEMPLE EXCAVATING & PAVING, INC.,

Respondent.

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Case No. 2016-23709-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 Temple & Temple Excavating & Paving, Inc. (“Respondent”), which owns and operates the facility with Plant ID No. 175-00028, located at 114 Tarr Avenue, in Salem, Washington 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:

 

Terry Temple, President

Ken Temple, Registered Agent

403 Tucker Street

1367 S. State Road

Salem, IN  47167

Salem, IN  47167

 

5.             Respondent owns and operates a stationary hot mix asphalt production plant.

 

6.             During an investigation conducted by a representative of IDEM, the following violations were found:

 

a.       Pursuant to 326 IAC 2-5.1-3, no major source may be constructed prior to receiving an air permit.

Respondent constructed a major source prior to obtaining a permit, in violation of 326 IAC 2-5.1-3.

 

b.       Pursuant to 326 IAC 2-7-2, no major source shall operate without a Title V permit.

Respondent failed to obtain a Title V permit prior to operating a major source, in violation of 326 IAC 2-7-2.

 

c.        Pursuant to NSPS 40 CFR 60, Subpart 1, particulate emissions from the testing of the hot asphalt mixer and aggregate dryer shall not exceed 0.04 gr/dscf.

 

          Respondent’s testing resulted in particular emissions from the hot asphalt mixer and aggregate dryer exceeding the limit of 0.04 gr/dscf, in violation of NSPS 40 CFR 60, Subpart I.

 

d.       Pursuant to permit condition C.17, D.1.9 and D.2.4, Respondent shall submit Quarterly Deviation and Compliance Monitoring Reports not later than thirty (30) days after the end of the reporting period.

 

Respondent failed to submit timely Quarterly Deviation and Compliance Monitoring Reports, in violation of permit condition C.17, D.1.9 and D.2.4.

 

7.             Respondent was issued a Federally Enforceable State Operating Permit (175-33877-00028) on March 20, 2015.

 

8.             Respondent submitted Quarterly Deviation and Compliance Monitoring Reports for the first, second, third and fourth quarter of 2015 and the first quarter of 2016 on April 7, 2016.

 

9.             Source conducted stack testing on May 19, 2016.  The results from the stack test are pending.

10.          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 326 IAC 2-5.1-3, 326 IAC 2-7-2, permit conditions C.17, D.1.9, D.2.4, and NSPS 40 CFR 60, Subpart I.

 

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

 

Susan Raisor, Compliance and Enforcement Manager

Indiana Department of Environmental Management

820 W. Sweet Street

Brownstown, IN  47220

 

4.             Respondent is assessed and agrees to pay a civil penalty of Twenty Nine Thousand Three Hundred Seventy-Five Dollars ($29,375.00).  The civil penalty shall be paid in the following manner: one (1) payment of Two Thousand Four Hundred Twenty-Five Dollars ($2,425.00) and eleven (11) equal payments of Two Thousand Four Hundred Fifty Dollars ($2,450.00) each.  The first installment of the penalty amount shall be due and payable to Environmental Management Special Fund within thirty (30) days of the Effective Date; the 30th day being the “Due Date”.  Each subsequent payment shall be due within 30 days of the due date of the previous payment.

 

5.             Civil 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:

 

IDEM Office of Legal Counsel

IGCN, Rm  N1307

100 N Senate Ave

Indianapolis, IN  46204

 

6.             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.

 

7.             In the event that the monies due to IDEM pursuant to this Agreed Order are not paid on or before their Due Date, Respondent shall pay interest on the unpaid balance at the rate established by IC 24-4.6-1.  The interest shall be computed as having accrued from the Due Date until the date that Respondent pays any unpaid balance.  Such interest shall be payable to the Environmental Management Special Fund, and shall be payable to IDEM in the manner specified in Paragraph 5, above.

 

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 permits 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

 

Temple & Temple Excavating & Paving, Inc.

 

 

 

By:

 

 

By:

 

 

Mark A. Amick, Director

 

Printed:

 

 

Southeast Regional Office

 

Title:

 

 

Indiana Department of Environmental Management

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

 

 

 

 

 

COUNSEL FOR RESPONDENT:

 

 

 

 

 

 

 

 

 

By:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Date:

 

 

 

 

 

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

 

DAY OF

 

, 2016.

 

 

For the Commissioner

 

 

 

Signed on September 9, 2016

 

Keith Baugues, Assistant Commissioner

 

Office of Air Quality

 

Indiana Department of Environmental Management