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
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Complainant, |
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ASPHALT
CUTBACKS, INC., |
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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 Asphalt Cutbacks, Inc. (“Respondent”), which owns and operates the stationary
asphalt processing source with Plant ID No. 089-00379, located at 3000 Gary
Avenue, in East Chicago, Lake 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:
Cleopatra Bizoukas, President George
Bizoukas, Registered Agent
Asphalt
Cutbacks, Inc. Asphalt
Cutbacks, Inc.
3716 Boulevard
Drive 3716
Boulevard Drive
Highland, IN 46322 Highland, IN
46322
5.
During
an investigation including an inspection on June 18, 2020, conducted by a
representative of IDEM, the following violations were found:
a.
Pursuant
to 40 CFR 63.6603(a), Respondent shall comply with the operating limitations
and maintenance requirements applicable to Respondent’s natural gas-fired
emergency generator.
During
an inspection conducted by an IDEM representative on June 18, 2020, Respondent
failed to produce records documenting maintenance performed on the natural
gas-fired emergency generator, in violation of 40 CFR 63.6603(a).
b.
Pursuant
to 40 CFR 63.11564(a)(2), Respondent shall submit initial notification of the
emissions testing required by 40 CFR Part 63, Subpart AAAAAAA not later than
120 calendar days after December 2, 2009.
Respondent
failed to submit initial notification of the emissions testing required by 40
CFR Part 63, Subpart AAAAAAA not later than 120 calendar days after December 2,
2009, in violation of 40 CFR 63.11564(a)(2).
c.
Pursuant
to 40 CFR 63.11564(a)(5), Respondent shall submit a Notification of Compliance
Status, including the compliance test results, before the 60th calendar day
following the completion of the emissions testing required by 40 CFR Part 63,
Subpart AAAAAAA.
Respondent
failed to submit a Notification of Compliance Status before the 60th calendar
day following the completion of the emissions testing required by 40 CFR Part
63, Subpart AAAAAAA, in violation of 40 CFR 63.11564(a)(5).
d.
Pursuant
to 40 CFR 63.11564(b), Respondent shall submit compliance reports to
demonstrate compliance with the emissions testing required by 40 CFR Part 63,
Subpart AAAAAAA.
Respondent
failed to submit compliance reports to demonstrate compliance with the
emissions testing required by 40 CFR Part 63, Subpart AAAAAAA, in violation of
40 CFR 63.11564(b).
e.
Pursuant
to Federally Enforceable State Operating Permit 089-43500-00379 (“Permit”),
condition E.4.3, in order to document the compliance
status with Condition E.4.2, Respondent shall perform the testing required
under 40 CFR 63, Subpart AAAAAAA, utilizing methods as approved by the
Commissioner, at least once every five (5) years from the date of the most
recent valid compliance demonstration.
Respondent
failed to perform the testing required under 40 CFR 63, Subpart AAAAAAA, within
five (5) years of the most recent valid compliance demonstration, in violation
of Permit condition E.4.2.
6.
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 Federally
Enforceable State Operating Permit 089-43500-00379 unless superseded by a
permit revision or renewal.
3.
Within ninety (90) days of the Effective Date,
Respondent shall comply with Permit condition E.4.3. Specifically, Respondent shall perform the
testing required under 40 CFR 63, Subpart AAAAAAA.
4.
All submittals required by this Agreed Order,
unless IDEM notifies the Respondent otherwise in writing, shall be sent to:
Andrew Taylor,
Enforcement Case Manager
Office of Air Quality
Indiana
Department of Environmental Management
100 North
Senate Avenue
Indianapolis,
IN 46204-2251
AKTaylor@idem.IN.gov
5.
Pursuant to IC 13-30-4-1, Respondent is
assessed and agrees to pay a civil penalty of Nine Thousand Eight Hundred Dollars
($9,800.00). 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.
In the event the terms and conditions of the
following paragraphs are violated, Complainant may assess
and Respondent shall pay stipulated penalties in the following amounts:
Paragraph |
Violation |
Stipulated
Penalty |
3 |
Failure
to conduct performance testing required under 40 CFR 63, Subpart AAAAAAA |
$500 per week |
7.
Stipulated penalties shall be due and payable
no later than the thirtieth day after Respondent receives written notice that
Complainant has determined a stipulated penalty is due; the thirtieth 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 a
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.
8.
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
9.
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 8,
above.
10.
Signatories to this Agreed Order certify that
they are fully authorized to execute this Agreed Order and legally bind the
party they represent.
11.
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.
12.
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.
13.
Respondent shall ensure that all contractors,
firms, and other persons performing work under this Agreed Order comply with
the terms of 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.
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.
16.
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.
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 violations
specified in the NOV.
18.
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.
19.
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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Asphalt Cutbacks, Inc. |
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David
P. McIver, Chief |
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Printed: |
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Enforcement
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Title: |
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Office
of Air Quality |
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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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APPROVED
AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT THIS |
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2023. |
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For
the Commissioner: |
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Signed
on June 21, 2023 |
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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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