STATE OF
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BEFORE THE
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COUNTY OF
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ENVIRONMENTAL
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COMMISSIONER
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OF
ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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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. Pursuant to Indiana Code (“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 IC
13-13-1-1.
2. Respondent is API Construction Corp. (“Respondent”), which owns and operates the stationary hot-mix asphalt plant with Plant ID No. 033-00055, located at 1633 County Road 72, in Huntertown, DeKalb 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
Electronic Mail to:
API
Construction Corp. |
Kirk
Braun |
Attn:
Kirk Braun, President |
Registered
Agent |
16522
Pine Ridge Pass |
11808
State Road 205 East |
Leo,
Indiana 46765 |
Laotto, Indiana 46763 |
k.braun@apiland.net |
k.braun@apiland.net |
5.
During
an investigation including a records review on November 30,
2018 conducted by a representative of IDEM, the following
violation was found:
a. Pursuant to 40 CFR 60.92(a)(1) and Part 70 Operating Permit No. 033-34535-00055 (“Permit”) condition E.1.2, Respondent shall not discharge into the atmosphere any gases which contain particulate matter in excess of 0.04 grain per dry standard cubic foot (“gr/dscf”) on the date the performance test is completed.
At the October 9, 2018 performance test, Respondent discharged
particulate matter in excess of 0.04 gr/dscf, in violation of 40 CFR 60.92(a)(1) and Permit
condition E.1.2.
6.
Respondent
conducted a retest of the continuous hot-mix asphalt plant aggregate dryer on August 7, 2019, and demonstrated that the PM emission rate
was 0.002 gr/dscf, which is below the emission limit
of 0.04 gr/dscf.
7.
Orders
of the Commissioner are subject to administrative review by the Office of
Environmental Adjudication under IC 4-21.5; however, in recognition of the settlement
reached, Respondent acknowledges notice of this right and 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 the environmental rule and permit condition
listed in the findings of fact above.
3.
Respondent shall continue to use 18 oz Aramid
with Hydro-Oleophobic Finish or better bags for their baghouse.
4.
All
submittals required by this Agreed Order, unless IDEM notifies the Respondent
otherwise in writing, shall be sent to:
Alison Trabel, Enforcement Case Manager
Office of Air Quality
Indiana
Department of Environmental Management
100 North
Senate Avenue
Indianapolis,
IN 46204-2251
atrabel@idem.in.gov
5.
Pursuant
to IC 13-30-4-1, Respondent is assessed and agrees to pay a civil penalty of Five
Thousand Dollars ($5,000.00). Said
penalty amount shall be due and payable to the Environmental Management Special
Fund within thirty (30) days of the Effective Date; the thirtieth day being the
“Due Date.”
6.
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:
Indiana
Department of Environmental Management
Accounts Receivable
IGCN, Room
1340
100 North
Senate Avenue
Indianapolis,
IN 46204
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 6, above.
8.
Signatories
to this Agreed Order certify that they are fully authorized to execute this
Agreed Order and legally bind the party they represent.
9.
This
Agreed Order shall apply to and be binding upon Respondent and
all successors and assigns. Respondent shall provide a copy of this Agreed
Order, if in force, to any subsequent owners, successors, or assigns before
ownership rights are transferred.
10.
No
change in ownership, corporate, or partnership status of Respondent shall in
any way alter the Respondent’s status or responsibilities under
this Agreed Order.
11.
Respondent
shall ensure that all contractors, firms, and other persons performing work
under this Agreed Order comply with the terms of 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.
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 the obligation to comply with the
requirements of any applicable permits or any applicable Federal or State laws
or regulations.
14.
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.
15.
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 violation specified in the NOV.
16.
Nothing
in this Agreed Order shall prevent IDEM or anyone acting on its behalf from
communicating with the U.S. Environmental Protection Agency (“U.S. 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 U.S. EPA or any other agency or entity.
17.
This
Agreed Order shall remain in effect until Respondent has complied with all terms and conditions of this Agreed Order
and IDEM has issued a Resolution of Case letter to Respondent.
TECHNICAL
RECOMMENDATION: |
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RESPONDENT: |
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Department
of Environmental Management |
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API Construction Corp. |
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By: |
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David
P. McIver, Chief |
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Printed: |
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Enforcement
Section |
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Title: |
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Office
of Air Quality |
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Date: |
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Date: |
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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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By: |
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Date: |
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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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2021. |
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For
the Commissioner: |
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Signed
on May 3, 2021 |
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Matthew
Stuckey |
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Assistant
Commissioner |
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Office
of Air Quality Indiana
Department of Environmental Management |
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