Case Nos. 2018-25690-S,





tanners creek development llc,















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.




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 Tanners Creek Development LLC (“Respondent”) which owns and/or operates the properties identified as Parcel ID numbers 15-07-22-900-026.001-013, 15-07-23-202-003.002-013, and 15-07-23-202-020.000-026, located in Lawrenceburg, IN (“Site”).


3.               IDEM has jurisdiction over the parties and the subject matter of this action.


4.               Respondent waives issuance of a Notice of Violation and the settlement period of sixty (60) days as provided for by Indiana Code IC 13-30-3-3.


5.               Tanners Creek Generating Station was a coal fired electrical power plant located at the Site. The plant began operating in approximately 1951 and ceased operating on May 31, 2015. Subsequently, the Site, including the plant, was sold to Tanners Creek Development LLC, an affiliate of Commercial Development Co., Inc. (“CDC”). EnviroAnalytics Group LLC and Industrial Demolition LLC, also affiliates of CDC, have been doing demolition of the plant site since 2016.


6.               IDEM staff inspected the former Tanners Creek Generating Station located at 214 AEP Drive where coal combustion waste was disposed. A low area approximately two (2) acres in size with a depth of approximately five (5) feet of coal combustion waste is located on the east side of the property (“Area 1”) (See Exhibit A attached hereto).


7.               IDEM staff inspected the former Gibbco, Inc. stationary wet-bottom boiler slag processing operation located at 901 AEP Drive regarding the use and/or disposal of coal combustion waste. Approximately seventeen (17) acres appears to be covered with a minimum of approximately two (2) feet of coal combustion waste (“Area 2”) (See Exhibit A attached hereto). There are portions of Area 2 that contain coal combustion waste at depths as much as twenty (20) feet. Sparse vegetation was observed growing in the waste.


8.               Based on an investigation including an inspection conducted by representatives of IDEM on October 10, 2018, the following violations were found:


a.               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 in the inspection, an open dump exists at Areas 1 and 2 of the Site. Areas 1 and 2 do not fulfill the requirements of a legally acceptable land disposal method and are established and maintained without cover and without regard to the possibilities of contamination of surface or subsurface water resources.  While it is acknowledged these conditions existed prior to Respondent owning the Site, Respondent needed to remedy these conditions as soon as practicable after acquiring the Site.


b.               Pursuant to 329 IAC 10-4-4(a), the owner of real estate upon which an open dump is located is responsible for the following:


(1)            Correcting and controlling any nuisance conditions that occur as a result of the open dump. Correction and control of nuisance conditions must include:


(A)           removal of all solid waste from the area of the open dump and   disposal of such wastes in a solid waste land disposal facility permitted to accept the waste; or

(B)           other methods as approved by the commissioner.


(2)            Eliminating any threat to human health or the environment.


As noted in the inspection, an open dump exists at Areas 1 and 2 of the Site and Respondent has not complied with the requirements of 329 IAC 10-4-4(a)(1) and (2). Areas 1 and 2 do not fulfill the requirements of a legally acceptable land disposal method and are established and maintained without cover and without regard to the possibilities of contamination of surface or subsurface water resources.


9.               In recognition of the settlement reached, Respondent waives any right to administrative and judicial review of this Agreed 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.               Within ninety (90) days of the Effective Date, Respondent shall prepare and submit to IDEM a closure/post closure plan for Areas 1 and 2 of the Site for review and approval.  Respondent shall submit three (3) hard copies and one (1) complete copy of the entire document on CD, in PDF format no greater than 100 megabytes per file.  Those plans shall be in accordance with the provisions of 329 IAC 10-30 and 10-31 for Restricted Waste Sites Type I unless IDEM approves otherwise in writing. The closure/post closure plan may, at Respondent’s option, include a provision for removing all coal combustion waste from Area 1 and placing it in Area 2. However, the closure/post closure plan is subject to IDEM approval.


The closure/post closure plan shall include an implementation and completion schedule, including specific milestone dates.


3.               Respondent, upon receipt of written notification from IDEM of its approval of those plans, shall immediately implement the approved closure/post closure plan and adhere to the milestone dates therein. The approved closure/post closure plan shall be incorporated into this Agreed Order and shall be deemed an enforceable part thereof.


4.               In the event IDEM determines that any plan submitted by Respondent is deficient or otherwise unacceptable, Respondent shall revise and resubmit the plan to IDEM in accordance with IDEM’s notice. After three (3) submissions of such plan by Respondent, IDEM may modify and approve any such plan and Respondent must either: 1) implement the plan as modified by IDEM; or 2) request administrative review of the modified and approved plan before the Office of Environmental Adjudication (“OEA”) in accordance with IC 4-21.5.  The approved plan, or if applicable, any plan resulting from review under IC 4-21.5, shall be incorporated into this Agreed Order and shall be deemed an enforceable part thereof.


5.               Within sixty (60) days of approval of the plans, Respondent shall demonstrate to IDEM financial assurance for closure and post closure care of Areas 1 and 2 at the Site in accordance with 329 IAC 10-39 and as applicable should wastes be left in place.


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


Debbie O’Brien, Enforcement Case Manager

Office of Land Quality

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251


As to Respondent:


Eric Lemp, Esq.

General Counsel for

Commercial Development Co., Inc.

Environmental Liability Transfer, Inc.

EnviroAnalytics Group LLC

1515 Des Peres Rd. – Suite 300

Saint Louis, MO 63131



7.               Respondent is assessed and agrees to pay a civil penalty of fourteen thousand dollars ($14,000). Said penalty amount shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the Effective Date; the 30th day being the “Due Date”.


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:


Order Paragraph Number


Penalty Amount


Failure to submit closure/post closure plan, within given time period.

$250 per each week late


Failure to implement the approved closure/post closure plan, and/or meet any milestone date set forth therein.

$250 per each week late


Failure to demonstrate financial assurance for closure/post closure.

$250 per each week late


9.               Stipulated penalties shall be due and payable no later than the 30th day after Respondent receives written notice that Complainant has determined a stipulated penalty is due; the 30th day being the “Due Date”. Complainant may notify Respondent at any time that a stipulated penalty is due. Failure to notify Respondent 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 Respondent for violation of this Agreed Order. Neither assessment nor payment of stipulated penalties shall preclude Complainant from seeking additional relief against Respondent 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.


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:


Indiana Department of Environmental Management

Office of Legal Counsel

IGCN, Room N1307

100 North Senate Avenue

Indianapolis, IN  46204-2251


11.           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 10, above.


12.           Force majeure, for purposes of this Agreed Order, is defined as any event arising from causes totally beyond the control and without fault of Respondent that delays or prevents the performance of any obligation under this Agreed Order despite Respondent’s best efforts to fulfill the obligation. The requirement that Respondent 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.


Respondent shall notify IDEM by calling the case manager within three (3) calendar days and by writing no later than seven (7) calendar days after it has knowledge of any event which Respondent contends 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 Respondent to minimize the delay; and (4) the timetable by which these measures will be implemented. Respondent 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 Respondent from asserting any claim of force majeure for that event. Respondent shall have the burden of demonstrating that the event is a force majeure. The decision of whether an event is 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.


13.           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.


14.           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.


15.           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 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.


17.           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.


18.           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 this Agreed Order.


19.           This Agreed Order shall remain in effect until Respondent has complied with all terms and conditions of this Agreed Order and IDEM issues a Resolution of Case letter to Respondent.




Department of Environmental Management




By: _________________________

By:  _________________________


Linda L. McClure, Chief



Enforcement Section

Printed: ______________________

Office of Land Quality



Title: ________________________



Date: __________________

Date: _______________________












By: ________________________







Date: ______________________






________________________, 20



For the Commissioner:




May 8, 2019


Peggy Dorsey, Assistant Commissioner


Office of Land Quality