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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
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OF
ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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v. |
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Case No. 2020-27349-H |
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FARNSWORTH
METAL RECYCLING, LLC |
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AND RAY’S
TRASH SERVICE INC., |
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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 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.
Respondent is Farnsworth Metal Recycling, LLC.,
which owns/operates a recycling facility and owns the
property, parcel # 49-11-20-102-009.000-970, located at 3602 Farnsworth Street,
in Indianapolis, Marion County, Indiana (“Site”).
3.
Respondent is Ray’s Trash Services Inc, which
owns/operates a recycling and waste disposal operation with the main office
located at 3859 East US Highway 40, in Clayton, Hendricks County, Indiana.
4.
Respondent, Ray’s Trash Services Inc., received
a “Use of Tear-off Asphalt Roofing Shingles” Legitimate Use Approval
(“Approval”) on June 1, 2017. This
Approval allowed non-asbestos containing shingles to be sent to Respondent,
Farnsworth Metal Recycling, LLC, to be ground and marketed for Hot Mixed
Asphalt (“HMA”). The Approval expired on
June 1, 2020.
5.
The amount of non-asbestos shingles noted at
the Site during the September 8, 2020 inspection are as follows:
Pile 2. Whole shingles measured approximately 120
ft x 84 ft x 12.5 ft (volume = 21,000 ft3) stored outside, partially
covered and contained.
Pile 3. Ground shingles measured approximately 60
ft x 53 ft x 10 ft (volume = 31,800 ft3) stored inside a barn.
6.
IDEM
has jurisdiction over the parties and the subject matter of this action.
7.
Pursuant to IC 13-30-3-3, IDEM issued a Notice
of Violation (“NOV”) via regular mail to:
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Donald
Matthews, President |
Donald
B Matthews, President |
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Ray’s
Trash Service Inc. |
Farnsworth
Metal Recycling, LLC |
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3859
East US HWY 40, Drawer 1 |
1223
South CR 525 East |
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Clayton,
Indiana 46118 |
Avon,
Indiana 46123 |
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Donald
Matthews |
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Registered
Agent for |
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Farnsworth
Metal Recycling, LLC and |
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Ray’s
Trash Service Inc. |
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3859
East US Highway 40 |
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Belleville,
Indiana 46118 |
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8. During an investigation, including
inspections on October 17, 2019, February 3, 2020, and September 8, 2020, conducted
by a representative of IDEM, the following violations were found:
a. Pursuant to Approval Condition 2, the
use as described and managed below is limited to HMA. If it is determined that the use is no longer
suitable or a market does not exist, the use must cease.
As noted
during the October 17, 2019, February 3, 2020, and September 8, 2020
inspections, Respondents failed to find and/or utilize a market for HMA and
failed to stop collecting/storing non-asbestos shingles at the Site.
Respondent, Farnsworth Metal Recycling, LLC, stated, during the October 17,
2019 inspection, that non-asbestos shingles had not been received at the Site
or ground non-asbestos shingles sent for re-use since 2017.
b. Pursuant to Approval Condition 3a and
4a, shingles have tested negative for asbestos. Every layer of every roof must
be tested. Testing results must be made available to IDEM upon request.
As noted during the February 3, 2020 and September 8, 2020
inspections, Respondents failed to submit asbestos testing results for the time
of May to Oct 2017.
c. Pursuant to Approval Condition 7,
ground shingle material will be stored in a building. Piles are not to exceed [the
volume and height requirements in accordance with] condition 10.
As noted
during the October 17, 2019 inspection, Respondents had one (1) ground shingle
pile stored outside and uncovered.
Respondents relocated
the ground shingle pile to an inside location prior to the February 3, 2020
inspection.
d. Pursuant to Approval Condition 8, whole
singles will be stored in piles. The piles must be completely covered with a
tarp and located on the interior of the property on an impervious surface
(e.g., asphalt pad, concrete pad, etc.) In the event the shingles are found to
be migrating to the property lines, the facility must comply with condition 9.
Piles are not to exceed [the volume and height requirements in accordance with]
condition 10.
As noted
during the October 17, 2019 and February 3, 2020 inspections, Respondents had
one (1) whole shingle pile stored uncovered.
e. Pursuant to Approval Condition 10, no
shingle pile may exceed 50,000 cubic feet in volume. No shingle pile may exceed
a height of 10 feet.
As noted
during the October 17, 2019 and February 3, 2020 inspections, Respondents had
one (1) shingle pile at a height of 12.5 feet.
f. Pursuant to 329 Indiana Administrative
Code (“IAC”) 13-4-3(e), upon detection of a release of used oil to the
environment not subject to the requirements of 40 CFR 280 Subpart F, which has
occurred after the effective date of this rule, a generator must perform the
following clean-up steps:
(1) Stop the release.
(2) Contain the released used
oil.
(3) Clean up and manage
properly the released used oil and other materials.
As noted
during the October 17, 2019 and February 3, 2020 inspections, Respondents had
several small sized fluid releases and heavy staining near Building 3, near the
whole shingle pile, and near the machine turnings stored at the receiving area.
As noted in
the September 8, 2020 inspection, Respondents had addressed the oil releases,
retrained facility personnel, and notified the machine turnings company to
reduce the amount or residual lubricant on the turnings received.
g. Pursuant
to IC 13-30-2-1(4), a person may not deposit or cause or allow the deposit of
any 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.
Pursuant to
329 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.
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.
Respondents
stored three (3) shingle piles onsite with the intent to market for HMA per the
Approval. Respondent, Farnsworth Metal Recycling, LLC, stated, during the
October 17, 2019 inspection, that non-asbestos shingles had not been received
at the Site or ground non-asbestos shingles sent for re-use since 2017. The
Approval expired on June 1, 2020 and the three (3) non-asbestos shingle piles, noted
at the September 10, 2020 inspection, are considered a solid waste.
h. 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.
Respondent, Farnsworth
Metal Recycling, LLC, as property owner, failed to remove and properly disposal
of non-asbestos shingles, a solid waste.
9. On March 17, 2021, Respondent, Farnsworth
Metal Recycling, LLC, was issued an interim Legitimate Use Approval (“2021
Approval”), which will remain in effect until December 31, 2021.
10. 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 statute and rules
listed in the findings of fact above.
3. Upon the Effective Date, Respondent, Farnsworth
Metal Recycling, LLC, shall comply with the 2021 Approval issued on March 12, 2021.
4. Upon the Effective Date and while
operating under the 2021 Approval, Respondent, Farnsworth Metal Recycling, LLC,
shall not accept new shingles (ground or whole) at the Site.
5. Respondents shall have all shingles
(ground and whole) removed from the Site by December 31, 2021. A stipulated penalty, see Order Paragraph 10,
has been established for failure to have all shingles removed by this deadline.
Respondents shall ensure by August 31,
2021 that 50% or greater of the shingles have been sent for reuse and/or transportation
to a State approved solid waste management facility.
Respondents shall ensure by November 30,
2021 that 75% or greater of the shingles have been sent for reuse and/or transportation
to a State approved solid waste management facility.
6.
Within
thirty (30) days of the Effective Date and monthly thereafter, until December
31, 2021, Respondents shall submit documentation of the quantity of shingles
sent for reuse and/or transportation to a State approved solid waste management
facility.
7.
Respondent
is required to submit a new Legitimate Use Approval Application before
acceptance of new shingles. A Legitimate Use Approval will be contingent upon
removal of all existing shingles (ground and whole) by December 31, 2021,
completion of an Enforcement Follow-up inspection, and the issuance of a Resolution
of Case letter.
8. All submittals required by this Agreed
Order, unless IDEM notifies the Respondents
otherwise in writing, shall be sent to:
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Linda
McClure, Enforcement Case Manager |
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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 |
9. Pursuant to IC 13-30-4-1, Respondents
are assessed and agree to pay a civil penalty of Eight Thousand Two Hundred Dollars
($8,200). Within thirty (30) days of the Effective Date of the Agreed Order,
Respondents shall pay a portion of this penalty in the amount of One Thousand
Six Hundred Forty Dollars ($1,640). 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.”
In lieu of payment to IDEM of the
remaining civil penalty, Respondents shall make a cash payment of Six Thousand
Five Hundred Sixty Dollars ($6,560) to IDEM’s “Waste Tire Fund.” Respondents
shall make such payment within thirty (30) days of the Effective Date of this
Agreed Order. Payment to the “Waste Tire Fund” satisfies Respondent’s
obligation to undertake a SEP to offset a portion of the civil penalty assessed
in this matter.
The SEP proceeds will be spent on solid
waste sites in the State of Indiana with waste tires. These sites are often abandoned or the landowner demonstrates an inability to pay
for the proper removal and disposal of the waste tires.
In the event
that
Respondents do not make its SEP payment within thirty (30) days of the
Effective Date of this Agreed Order, the full amount of the civil penalty as
stated in this paragraph, plus interest established by IC 24-4.6-1-101 on the remaining
amount, less the portion of the civil penalty Respondents have already paid,
will be due to IDEM within fifteen (15) days from Respondents’ receipt of
IDEM’s notice to pay. Interest, at the rate established by IC
24-4.6-1-101, shall be calculated on the amount due from the date which is
thirty (30) days after the Effective Date of this Agreed Order until the full
civil penalty is paid.
Payment for the SEP is payable by check
to the “Waste Tire Fund.” The Case Number of this action shall be included
in the memo line of the check. The check shall be mailed to:
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Indiana
Department of Environmental Management |
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Accounts
Receivable |
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IGCN,
Room 1340 |
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100
North Senate Avenue |
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Indianapolis,
IN 46204 |
10.
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:
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Paragraph |
Action |
Stipulated Penalty |
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3 |
Failure
to comply with the 2021 Approval. |
$300
per week |
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4 |
Failure
to refrain from accepting shingles at the Site. |
$300
per week |
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Failure
to remove all shingles at the Site by December 31, 2021. |
$1,000
per month or part there of |
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Failure
to submit monthly quantity reuse/disposal documentation |
$150
per week |
11.
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.
12.
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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Accounts
Receivable |
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IGCN,
Room 1340 |
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100
North Senate Avenue |
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Indianapolis,
IN 46204 |
13.
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 13, above.
14.
Signatories to this Agreed Order certify that
they are fully authorized to execute this Agreed Order and legally bind the
party they represent.
15.
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.
16.
No change in ownership, corporate, or
partnership status of Respondents shall in any way alter the Respondents’
status or responsibilities under this Agreed Order.
17.
Respondents shall ensure that all contractors,
firms, and other persons performing work under this Agreed Order comply with
the terms of this Agreed Order.
18.
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.
19.
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.
20.
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.
21.
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.
22.
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.
23. This Agreed Order shall remain in effect
until IDEM issues a Resolution of Case letter to Respondents.
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TECHNICAL
RECOMMENDATION: |
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Department of Environmental Management |
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By: _______ |
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Jennifer
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Land
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Office of
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Date: ___________ |
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COUNSEL FOR RESPONDENT: |
RESPONDENT: |
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By:
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By:
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Printed: ______________________ |
Printed: ______________________ |
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Title: ________________________ |
Title: ________________________ |
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Date: _______________________ |
Date: _______________________ |
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COUNSEL FOR RESPONDENT: |
RESPONDENT: |
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By:
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By:
_________________________ |
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Printed: ______________________ |
Printed: ______________________ |
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Title: ________________________ |
Title: ________________________ |
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Date: _______________________ |
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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20__. |
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For the Commissioner: |
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Signed 4/7/2021 |
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Peggy Dorsey |
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Assistant Commissioner |
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Office of Land Quality |
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