STATE OF INDIANA		)	SS:	BEFORE THE INDIANA DEPARTMENT OF
		)
COUNTY OF MARION		)		ENVIRONMENTAL MANAGEMENT

COMMISSIONER OF THE DEPARTMENT					)
OF ENVIRONMENTAL MANAGEMENT,					)
					)
Complainant,					)
					)
	v.				)	Case No. 2020-26958-S
					)
CARTER LUMBER INC.,					)
CARTER LUMBER COMPANY, and					)
CARTER LUMBER PARTNERSHIP OF					)
INDIANA,					)
					)
Respondents.					)

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 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. 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 IC 13-13-1-1.

2. Respondents are Carter Lumber Inc., Carter Lumber Company, and Carter Lumber Partnership of Indiana (“Respondents”), which own and/or operate the facility located at 2901 N. Morton Street, in Franklin, Johnson 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”) to:

Carter Lumber Inc.	Corporation Service Company, Inc
Attn: Jeffrey S. Donley, President	Registered Agent for Carter Lumber Inc.
601 Tallmadge Rd	135 North Pennsylvania St., Suite 1610
Kent, OH 44240	Indianapolis, IN 46204

Jeffrey S. Donley, President	Corporation Service Company, Registered
Carter Lumber Company	Agent for Carter Lumber Company
601 Tallmadge Rd	135 N. Pennsylvania St., Suite 1610
Kent, OH 44240	Indianapolis, IN 46204

Carter Lumber Partnership of Indiana
601 Tallmadge Rd.
Kent, OH 44240

5. Respondents own the Site and/or operate as a building materials retailer.

6. During an investigation including inspections on November 16 and November 19, 2020 conducted by a representative of IDEM, the following violations were found:

a. Pursuant to IC 13-18-4-5(a), a person may not throw, run, drain, or otherwise dispose into any of the streams or waters of this state, or cause, permit, or suffer to be thrown, run, drained, allowed to seep, or otherwise disposed into any streams or waters of Indiana any organic or inorganic matter that causes or contributes to a polluted condition of any of the streams or waters of Indiana, as determined by 327 Indiana Administrative Code (“IAC”) 2-1-6(a)(1), a rule adopted under IC 13-18-4-1 and IC 13-18-4-3.

As noted during the inspection on November 16, 2019, Respondents allowed diesel fuel from aboveground storage tanks to spill onto the soil and enter the storm drain leading to Canary Ditch. A red fuel and oil sheen were visible for two (2) miles along Canary Ditch.

b. Pursuant to IC 13-30-2-1(1), no person shall 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 327 IAC 2-1-6(a)(1), a rule adopted by the board under the environmental management laws.

c. Pursuant to 327 IAC 2-1-6(a)(1), all surface waters at all times and at all places including the mixing zone, shall meet the minimum conditions of being free from substances, materials, floating debris, oil, or scum attributable to municipal, industrial, agricultural, and other land use practices, or other discharges that do any of the following:

(A) will settle to form putrescent or otherwise objectionable deposits;

(B) are in amounts sufficient to be unsightly or deleterious;

(D) are in concentrations or combinations that will cause or contribute to the growth of aquatic plants or algae to such degree as to create a nuisance, be unsightly, or otherwise impair the designated uses; and

(E) are in amounts sufficient to be acutely toxic to, or to otherwise severely injure or kill aquatic life, other animals, plants, or humans.

d. Pursuant to 327 IAC 2-6.1-5 and 2-6.1-7(1-3), any person who operates, controls, or maintains any mode of transportation or facility from which a spill occurs shall, upon discovery of a reportable spill to the soil or surface waters of the state, do the following:

(1) Contain the spill, if possible, to prevent additional spilled material from entering the waters of the state.

(2) Undertake or cause others to undertake activities needed to accomplish a spill response.

(3) As soon as possible, but within two (2) hours of discovery, communicate a spill report to the Department of Environmental Management, Office of Land Quality, Emergency Response Section: Area Code 1-888-233-7745 for in-state calls (toll free), (317) 233-7745 for out-of-state calls. If new or updated spill report information becomes known that indicates a significant increase in the likelihood of damage to the waters of the state, the responsible party shall notify the department as soon as possible but within two (2) hours of the time the new or updated information becomes known.

As noted during the inspection on November 16, 2019, Respondents failed to report a diesel spill that occurred on November 14, 2019, from aboveground diesel tanks.

As noted during the inspection on November 19, 2019, Respondents failed to report a second incident of diesel fuel spillage which was noted on the ground at the Site.

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, Respondents acknowledge notice of this right and 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 and rules listed in the findings of fact above.

3. Immediately upon the Effective Date, Respondents shall conduct a spill response when necessary and ensure that within two (2) hours of discovery of a spill, they communicate a spill report to IDEM’s Emergency Spill Line at 1-888-233-7745 or 317-233-7745.

4. Immediately upon the Effective Date, Respondents shall comply with agreements or directions from IDEM for the purposes of assessment, remediation and/or monitoring of the Site. Specifically, Respondents shall comply with the Independent Closure Process Information and Remediation Request issued to the Site on April 29, 2020 from IDEM.

5. The issuance of a No Further Action Letter by IDEM shall be necessary prior to resolution of this enforcement action.

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

Debbie Chesterson, Enforcement Case Manager

Office of Land Quality

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

7. Pursuant to IC 13-30-4-1, Respondents are assessed and agree to pay a civil penalty of Ten Thousand Four Hundred Dollars ($10,400). Respondents are jointly and severally liable for all civil penalty assessments, including stipulated penalties. 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.”

8. In the event the terms and conditions of the following paragraphs are violated, Complainant may assess and Respondents shall pay stipulated penalties in the following amounts:

Paragraph	Stipulated Penalty
Order paragraph 4	$500 per week

9. Stipulated penalties shall be due and payable no later than the thirtieth day after Respondents receive written notice that Complainant has determined a stipulated penalty is due; the thirtieth 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 a 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. Respondents are jointly and severally liable for all stipulated penalty assessments

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

Accounts Receivable

IGCN, Room 1340

100 North Senate Avenue

Indianapolis, IN 46204

11. 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 10, above.

12. Signatories to this Agreed Order certify that they are fully authorized to execute this Agreed Order and legally bind the party they represent.

13. This Agreed Order shall jointly and severally apply to and be binding upon Respondents and all successors and assigns. Respondents shall provide a copy of this Agreed Order, if in force, to any subsequent owners, successors, or assigns before ownership rights are transferred.

14. No change in ownership, corporate, or partnership status of Respondents shall in any way alter Respondents’ status or responsibilities under this Agreed Order.

15. Respondents shall ensure that all contractors, firms, and other persons performing work under this Agreed Order comply with the terms of this Agreed Order.

16. 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.

17. 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 the obligation to comply with the requirements of any applicable permits or any applicable Federal or State laws or regulations.

18. 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.

19. 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 violations specified in the NOV.

20. 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 Respondents may incur as a result of such communications with the U.S. EPA or any other agency or entity.

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

TECHNICAL RECOMMENDATION:				RESPONDENT:
Department of Environmental Management				CIN Inc.

By: __________________				By: _________________________
	Jennifer Reno, Chief
	Land Enforcement Section			Printed: ______________________
Office of Land Quality
				Title: ________________________

Date: ___________				Date: _______________________


				COUNSEL FOR RESPONDENT:


				By: ________________________


				Date: ______________________

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS		______	DAY OF	________________________,	20__.

				For the Commissioner:

				Signed 05/27/21
				Peggy Dorsey
				Assistant Commissioner
				Office of Land Quality