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STATE OF
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BEFORE THE
INDIANA DEPARTMENT OF |
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COUNTY OF
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ENVIRONMENTAL
MANAGEMENT |
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COMMISSIONER
OF THE DEPARTMENT |
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OF
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Complainant, |
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v. |
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Case No. 2018-25182-S |
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hERBERT c. hOLDING, |
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HAROLD D. HOLDING, |
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HARRY R.
HOLDING, |
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HRH TRUCKING
LLC, |
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NORTHWEST
TOWING & RECOVERY, INC. AND |
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NORTHWEST
TOWING & RECOVERY OF MUNCIE, LLC |
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Respondents. |
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AGREED ORDER
Complainant
and Respondents 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. Respondents’ entry into this Agreed Order
shall not constitute a waiver of any defense, legal or equitable, which Respondents
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.
Respondents are Herbert C. Holding, Harry R.
Holding, Harold D. Holding, HRH Trucking LLC, Northwest Towing & Recovery,
Inc., and Northwest Towing & Recovery of Muncie, LLC who own and/or operated
an open dump, located at 3100 North
Buckles Street, Muncie, Delaware County (“Site”), described as Parcel No.
18-11-04-276-004.000-003. On March 19, 2018, the Delaware Circuit Court
determined in Cause No. 18C01-1401-PL-4, that the Site was adjudicated to be
the property of a de facto partnership between Herbert C. Holding, Harry R.
Holding, Harold D. Holding. Northwest Towing & Recovery, Inc. and Northwest
Towing & Recovery of Muncie, LLC, dispute that they have ever owned or
conducted any operations at 3100 N. Buckles Street in Muncie, Indiana. HRH Trucking LLC disputes that it ever owned
3100 N. Buckles Street in Muncie, Indiana, and further avers that the only
operations it conducted at the Site involved the hauling away of dirt from 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 (“NOV”) on May 31, 2018 via
Certified Mail to:
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Herbert
C. Holding |
Harold
D. Holding |
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7104
W. Santa Fe |
7104
West Santa Fe |
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Muncie,
IN 47304 |
Muncie,
IN 47304 |
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Harry
R. Holding |
HRH
Trucking LLC |
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7104
W. Santa Fe |
Karen
M. Holding, Registered Agent |
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Muncie,
IN 47304 |
2900
N. Martin Luther King Jr. Blvd |
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Muncie,
IN 47303 |
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Northwest
Towing & Recovery, Inc. |
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Northwest
Towing & Recovery of Muncie, LLC |
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Harry
R. Holding, |
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President
and Registered Agent |
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2900
N. Martin Luther King Jr. Blvd |
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Muncie,
IN 47303 |
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5. During an investigation including
inspections on August 25, 2017, September 5, 2017, and March 1, 2018, conducted
by a representative of IDEM, the following violations were found:
a.
Pursuant to 329 Indiana Administrative Code
(“IAC”) 10-4-2, no person shall cause or allow the storage, containment,
processing, or disposal of solid waste in a manner which creates a threat to
human health or the environment, including the creating of a fire hazard,
vector attraction, air or water pollution, or other contamination.
As noted
during the inspections, Respondents caused and/or allowed solid waste,
including, but not limited to, contaminated soil, old car parts, engines,
transmissions, waste tires, and other miscellaneous small parts that were
excavated from FT Muncie Partnership LLC property to be stored and/or disposed
at the Site in a manner which creates a threat to human health or the
environment.
b. Pursuant to 329 IAC 10-4-3, open
dumping and open dumps, as those terms are defined in IC 13-11-2-146 and IC
13-11-2-147, are prohibited.
As noted during the inspections, Respondents
caused and/or allowed waste tires, old car parts, engines, transmissions,
contaminated soil and other miscellaneous small parts
that were excavated from FT Muncie Partnership LLC property to be open dumped
in the northeast corner of the Site and waste tires to be deposited on the
Site.
c. Pursuant to IC 13-30-2-1(1), no person
shall 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 329 IAC 10-4-2
and 329 IAC 10-4-3, rules adopted by the board under the environmental
management laws.
As
noted during the inspections, Respondents allowed waste tires old car parts,
engines, transmissions, contaminated soil and other
miscellaneous small parts to be disposed at the Site in a manner that causes or
would cause pollution that violates or would violate 329 IAC 10-4-2 and 329 IAC
10-4-3. The contaminated soil was
excavated from FT Muncie Partnership LLC property and dumped in the northeast
corner of the Site.
d.
Pursuant to IC 13-30-2-1(3), no person shall
deposit any contaminants upon the land in a place and manner that creates or
would create a pollution hazard that violates or would violate 329 IAC 10-4-2
and 329 IAC 10-4-3.
As
noted during the inspections, Respondents allowed waste tires and old car
parts, engines, transmissions, contaminated soil and
other miscellaneous small parts to be disposed upon the land in a place and
manner that creates or would create a pollution hazard that violates 329 IAC
10-4-2 and 329 IAC 10-4-3.
e.
Pursuant to IC 13-30-2-1(4), no person shall
deposit or cause or allow the deposit of contaminants or solid waste upon the
land, except through the use of sanitary landfills,
incineration, composting, garbage grinding, or another method acceptable to the
board.
As
noted during the inspections, Respondents caused and/or allowed waste tires and
old car parts, engines, transmissions, contaminated soil
and other miscellaneous small parts, to be deposited at the Site in a method
which has not been determined by the board to be acceptable.
f.
Pursuant to IC 13-30-2-1(5), no person shall
dump or cause or allow the open dumping of garbage or any other solid waste in
violation of 329 IAC 10-4-2 and 329 IAC 10-4-3.
As
noted during the inspections, Respondents caused and/or allowed waste tires and
old car parts, engines, transmissions, contaminated soil and other
miscellaneous small parts, solid wastes, to be open dumped at the Site in
violation of 329 IAC 10-4-2 and 329 IAC 10-4-3.
6. Respondents submitted documentation for
the removal and proper disposal of contaminated soils that had been deposited
at the Site from the FT Muncie Partnership property on January 24, 2020 and documentation for the removal and disposal of some
of the tires at the Site on February 7, 2020.
7. In recognition of the settlement
reached, Respondents waive 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 Respondents. This Agreed Order shall have no force or
effect until the Effective Date.
2.
Respondents shall comply with the statutes,
rules, and/or permit conditions listed in the findings above.
3.
By no later than July 15, 2022, Respondents
shall comply with 329 IAC 10-4-2 and 329 IAC 10-4-3. Specifically, Respondents shall remove any
visible old car parts, engines, transmissions, remaining waste tires, and other
miscellaneous small parts from the Site and dispose of them at a permitted
solid waste management or recycling facility and shall ensure that any visible
residual automotive fluids, oil, and fuel is removed by excavating the soil six
inches beyond visible contamination, where stained soils are observed.
4.
By August 15, 2022, Respondents shall submit
written documentation that the visible old car parts, engines, transmissions,
remaining waste tires, other miscellaneous small parts, and contaminated soils
have been removed and any visible contaminated soils from the Site have been
taken to a permitted solid waste management facility.
5.
All submittals required by this Agreed Order,
unless Respondents are notified otherwise in writing by IDEM, shall be sent to:
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Janet Arnold, Technical Environmental
Specialist |
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Office of Land Quality |
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Indiana Department of Environmental
Management |
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100 North Senate Avenue |
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Indianapolis, IN 46204-2251 |
6.
Respondents are assessed and agree to pay a
civil penalty of Twenty-Five Thousand Dollars ($25,000). Respondents are jointly and
severally liable for all civil penalty assessments, including stipulated
penalties. Said penalty amount shall be due and payable
to the Waste Tire Fund within thirty (30) days of the Effective Date; the 30th
day being the “Due Date”.
7.
In the event the terms and conditions of the
following paragraphs are violated, Complainant may assess
and Respondents shall pay a stipulated penalty in the following amount:
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Paragraph |
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
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$100 per week |
8.
Stipulated penalties shall be due and payable
no later than the 30th day after Respondents receive written notice
that Complainant has determined a stipulated penalty is due; the 30th
day being the “Due Date”. Complainant
may notify Respondents at any time that a stipulated penalty is due. Failure to notify Respondents in writing in a
timely manner of stipulated penalty assessment shall not waive Complainant’s
right to collect such stipulated penalty or preclude Complainant from seeking
additional relief against Respondents for violation of this Agreed Order. Neither assessment nor payment of stipulated
penalties shall preclude Complainant from seeking additional relief against Respondents
for a violation of this Agreed Order; such additional relief includes any
remedies or sanctions available pursuant to Indiana law, including, but not
limited to, civil penalties pursuant to IC 13-30-4.
9.
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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Office of Legal Counsel |
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IGCN, Room N1307 |
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100 North Senate Avenue |
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Indianapolis, IN 46204 |
10.
In the event that the monies
due to IDEM pursuant to this Agreed Order are not paid on or before their Due
Date, Respondents 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 Respondents
pay 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 9,
above.
11.
Force majeure, for purposes of this Agreed
Order, is defined as any event arising from causes totally beyond the control
and without fault of Respondents that delays or prevents the performance of any
obligation under this Agreed Order despite Respondents’ best efforts to fulfill
the obligation. The requirement that Respondents exercise “best efforts to
fulfill the obligation” includes using best efforts to anticipate any potential
force majeure event and best efforts to address the effects of any potential
force majeure event (1) as it is occurring and (2) following the potential
force majeure event, such that the delay is minimized to the greatest extent
possible. Force majeure does not include (1) changed business or economic
conditions; (2) financial inability to complete the work required by this
Agreed Order; or (3) increases in costs to perform the work.
Respondents
shall notify IDEM by calling the case manager within three (3) calendar days
and by writing no later than seven (7) calendar days after they have knowledge
of any event which Respondents contend is a force majeure. Such notification
shall describe (1) the anticipated length of the delay; (2) the cause or causes
of the delay; (3) the measures taken or to be taken by Respondents to minimize
the delay; and (4) the timetable by which these measures will be implemented.
Respondents shall include with any notice all available documentation
supporting its claim that the delay was attributable to a force majeure.
Failure to comply with the above requirements shall preclude Respondents from
asserting any claim of force majeure for that event. Respondents shall have the
burden of demonstrating that the event is a force majeure. The decision of
whether an event constitutes a force majeure shall be made by IDEM.
If a delay is
attributable to a force majeure, IDEM shall extend, in writing, the time period for performance under this Agreed Order, by the
amount of time that is directly attributable to the event constituting the
force majeure.
12.
This Agreed Order shall jointly and severally
apply to and be binding upon Respondents and their successors and assigns. Respondents’
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 Respondents shall in any way alter their status or
responsibilities under this Agreed Order.
13.
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.
14.
Respondents shall provide a copy of this Agreed
Order, if in force, to any subsequent owners or successors before ownership
rights are transferred. Respondents
shall ensure that all contractors, firms and other
persons performing work under this Agreed Order comply with the terms of this
Agreed Order.
15.
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 Respondents pursuant to this Agreed Order,
shall not in any way relieve Respondents of their obligation to comply with the
requirements of their applicable permits or any applicable Federal or State law
or regulation.
16.
Complainant does not, by its approval of this
Agreed Order, warrant or aver in any manner that Respondents’ 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 Respondents
may incur as a result of Respondents’ efforts to
comply with this Agreed Order.
17.
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.
18.
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 Respondents may incur as a result of such communications with the EPA or any other
agency or entity.
19.
This Agreed Order makes no determination with regard to the liability of a party or any other person
under Ind. Code 13-25-4, et seq or CERCLA, 42 U.S.C. 9601, et seq.
20.
IDEM reserves all rights against Respondents
with respect to:
a. liability under Ind. Code 13-25-4, et
seq, and CERCLA, 42 USC 9601, et seq;
b. liability for Respondent’s failure to
meet a requirement of this Agreed Order;
c. criminal liability;
d. liability for damages for injury to,
destruction of, or loss of natural resources, and for the costs of any natural
resource damage assessments;
e. liability arising from the past,
present, or future disposal, release or threat of release of a hazardous
substance, pollutant, or contaminant at real estate other than the Site;
f. liability for violations of local,
State, or Federal law or regulations except those explicitly resolved in this Agreed
Order;
g. any liability resulting from Respondents
actions that contribute to or exacerbate the existing contamination at the
Site, unless such actions are required under this Agreed Order or are done at
IDEM’s direction or express consent; or
h. liability arising from any future
disposal, release or threat of release
21.
Upon completion of the work described in this
Agreed Order, IDEM will release the Judgment in Cause No. 18C03-1003-CC-51
against all of the Respondents.
22.
This Agreed Order in no way constitutes a
finding by IDEM as to the risks to human health and the environment which may
be posed by contamination at the Site nor constitutes any representation by
IDEM that the Site is fit for any particular purpose.
23.
This Agreed Order shall remain in effect until
IDEM issues a Resolution of Case letter to Respondents.
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TECHNICAL
RECOMMENDATION: |
RESPONDENT: |
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Department
of Environmental Management |
Northwest
Towing & Recovery of Muncie, LLC |
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By:
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By: _________________________ |
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Jennifer Reno, Section Chief |
Harry R. Holding |
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Enforcement Section |
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Office of Land Quality |
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Printed:
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Title:
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Date:
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Date:
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RESPONDENTS |
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HARRY
R. HOLDING, HRH TRUCKING LLC, |
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NORTHWEST
TOWING & RECOVERY, INC., |
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and
NORTHWEST TOWING & RECOVERY OF |
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MUNCIE,
LLC |
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By:
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Northwest Towing & Recovery of |
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Harry R. Holding |
Muncie,
LLC |
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Date: __________________ |
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By:
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Harry R. Holding |
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HRH Trucking LLC |
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Title:___________________________ |
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By:
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Harry
R. Holding |
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Date:_______________________ |
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Title:
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Northwest Towing & Recovery, Inc. |
Reviewed and approved as to form by |
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COUNSEL
FOR RESPONDENTS |
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HARRY
R. HOLDING, HRH TRUCKING LLC, |
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By:
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and
NORTHWEST TOWING & RECOVERY OF |
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Harry R. Holding |
MUNCIE,
LLC |
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Printed:
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By:
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Peter M. Racher |
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Plews Shadley Racher & Braun LLP |
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Title:
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Printed:
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Date:
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Title:
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Date:
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RESPONDENTS |
Reviewed
and approved as to form by |
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HERBERT C. HOLDING and HAROLD D. HOLDING |
COUNSEL
FOR RESPONDENTS |
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Herbert C. Holding |
HERBERT
C. HOLDING and |
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HAROLD
D. HOLDING: |
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By:
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By:
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Harry C. Holding |
Michael O. Nelson |
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Nelson Law Group LLC |
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Date: ______________________ |
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Printed: ___________________ |
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By:
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Harry D. Holding |
Title: ______________________ |
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Date: ______________________ |
Date: ______________________ |
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Printed:
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Title:
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Date:
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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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For
the Commissioner: |
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Signed November 4, 2021 |
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Peggy
Dorsey, Assistant Commissioner |
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Office
of Land Quality |
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