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. 2022-28590-H
					)
FLYNN & SONS EXCAVATING & PAVING, INC.,					) )
					)
Respondent.					)

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 asserted by IDEM 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 Flynn & Sons Excavating & Paving, Inc., which owns and operates the business, located at 8985 SR 37, in Bedford, Lawrence 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:

Gregory Flynn, President & Registered Agent

Flynn & Sons Excavating & Paving, Inc.

1444 Sunny Acres Drive

Bedford, Indiana 47421

5. Pursuant to 327 Indiana Administrative Code (“IAC”) 2-6.1-2, certain areas of the state are recognized as having unique geology. A large section of the mid-southern part of the state is a karst region. The waters of the state are vulnerable to damage from spills in these areas.

The Site is located in the mid-southern part of the state, in karst topography, with abundant collapse areas (sinkholes) and an identified sinkhole located on the Site. In 2017, Respondent inserted a 24-inch vertical perforated standpipe into a sinkhole to bedrock depth for the purpose of providing access to the sinkhole.

On or about June 4, 2021, IDEM responded to a complaint of odors by Bluespring Caverns. On June 9, 2021, IDEM identified Respondent’s facility as a possible source of the odor. IDEM observed contaminated material at the bottom of the vertical standpipe. In addition, IDEM noted that Respondent’s truck wash bay was connected to the vertical standpipe. At IDEM’s direction, Respondent hired an environmental contractor to conduct response activities, which included: removing all liquids and sediment at the bottom of the standpipe; cleaning out the underground drain leading to the standpipe; and installing an air moving unit at the on-Site sinkhole.

6. During an investigation, including an inspection on June 9, 2021, conducted by a representative of IDEM, IDEM contends that the following violations were found:

a. Pursuant to IC 13-11-2-265(a), "Waters", for purposes of water pollution control laws and environmental management laws, means: (1) the accumulations of water, surface and underground, natural and artificial, public and private; or (2) a part of the accumulations of water; that are wholly or partially within, flow through, or border upon Indiana.

Pursuant to 327 IAC 2-1-9(51)(B), "Surface waters of the state" or "surface water" has the meaning set forth in IC 13-11-2-265, except that the term does not include underground waters with the exception of any other underground stream that supports fish or other higher aquatic life forms and its underground tributaries.

Pursuant to 327 IAC 2-6.1-4, “Damage” means the actual or imminent alteration of the waters of the state so as to render the waters harmful, detrimental, or injurious to:

(A) public health, safety, or welfare;

(B) domestic, commercial, industrial, agricultural, or recreational uses; or

(C) animals or aquatic life.

Pursuant to 327 IAC 2-6.1-4, "Spill" means any unexpected, unintended, abnormal, or unapproved dumping, leakage, drainage, seepage, discharge or other loss of petroleum, hazardous substances, extremely hazardous substances, or objectionable substances. The term does not include releases to impermeable surfaces when the substance does not migrate off the surface or penetrate the surface and enter the soil.

Pursuant to 327 IAC 2-6.1-5, the following spills from a facility must be reported:

(5) Any spill for which a spill response has not been done.

Pursuant to 327 IAC 2-6.1-7(3) and (4), 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.

(4)  Submit to the Indiana Department of Environmental Management, Office of Land Quality, Emergency Response Section (MC 66-30), 2525 N. Shadeland Ave., Suite 100, Indianapolis, IN 46219-1787, a written copy of the spill report if requested in writing by the department.

(5)  Except from modes of transportation other than pipelines, exercise due diligence and document attempts to notify the following:(A) For spills to surface water that cause damage, the nearest affected downstream water user located within ten (10) miles of the spill and in the state of Indiana; and (B) For spills to soil outside the facility boundary, the affected property owner or owners, operator or operators, or occupant or occupants.

As noted by IDEM during the inspection, a spill of contaminated truck wash wastewater occurred at Respondent’s property, via a vertical standpipe, into a karst sinkhole, which IDEM contends drains to an underground tributary of the East Fork of the White River. This underground stream provides a habitat for blind cavefish and blind crayfish. Respondent did not report the spill and did not submit a spill report as requested by IDEM.

b. Pursuant to IC 13-30-2-1(1), no person shall discharge, emit, cause, allow, or threaten to 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 a rule adopted by the board under the environmental management laws.

As noted by IDEM during the inspection, a release of contaminated truck wash wastewater occurred on Respondent’s property, via a vertical standpipe, into a karst sinkhole, which threatened to discharge to an underground tributary of the East Fork of the White River.

In addition, soil contaminated with automotive fluids was identified by IDEM at the Site near a burned-out dump truck, around crushed oil filters, near a riser pipe, and near a small pile of used oil.

On June 7, 2023, Respondent submitted documentation to IDEM showing that the soil contamination at the Site was adequately removed.

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 Respondents. This Agreed Order shall have no force or effect until the Effective Date.

2. Respondent shall comply with the statutes and rules listed in the findings of fact above.

3. Immediately upon the Effective Date, Respondent shall ensure that the Site sinkhole is not used for the disposal of contaminated fluids.

4. Within thirty (30) days of the Effective Date, Respondent shall develop and submit a Fluid Control Standard Operating Procedure (“SOP”) which details:

a. The management and proper disposal of truck wash wastewater from the truck wash bay.

b. The proper management and disposal of fluids that drain to or are placed in the buried holding tank.

c. Spill prevention, reporting, and response, to include housekeeping and small spill cleanup methods and proper disposition.

5. Within thirty (30) days of the Effective Date, Respondent shall train necessary employees to the SOP as outlined in Order Paragraph #4. In addition, Respondent shall submit documentation of completed training within ten (10) days of completion.

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

Linda McClure, Enforcement Case Manager

Office of Land Quality

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

lmcclure@idem.in.gov

7. Pursuant to IC 13-30-4-1, Respondent is assessed and agrees to pay a civil penalty of Ten Thousand Seven Hundred and Fifty Dollars ($10,750). Civil penalties are payable to the “Environmental Management Special Fund.” Respondent shall pay by the due date printed on the Invoice, as attached.

8. Pursuant to IC 13-25-6-2, Respondent shall reimburse IDEM for the cleanup of the spill event. IDEM has determined the amount to be Eight Thousand Three Hundred and Thirty-One Dollars and Twenty-Five Cents ($8,331.25). This dollar amount is strictly for the purpose of cost recovery of 117.75 billable staff hours. Payment shall be made to the “Hazardous Substance Response Trust Fund” within thirty (30) days of the Effective Date.

9. Civil penalties, stipulated penalties, and cost recovery payments are payable by:

Mail:

Payable by check made out to the correct fund. Note that there are two (2) separate funds designated for this enforcement action - the “Environmental Management Special Fund” and the “Hazardous Substance Response Trust 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

Online:

Accounts Receivable is accepting payments online by e-Check, Master Card, Visa or Discover. Please visit www.IN.gov/IDEM. Under Online Services, click Online Payment options and follow the prompts. A processing fee of $1 plus 1.99% will be charged for credit card payments.  A processing fee of $1.00 will be charged for eCheck payments.

The Case Number is required to complete the process.

Phone:

You may also call us at 317-234-3099 and follow the instructions for Master Card, Visa or Discover payments. A processing fee of $1 plus 1.99% will be charged for credit card payments.  A processing fee of $1.00 will be charged for eCheck payments.

The Case Number is required to complete the process.

10. 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	Action	Stipulated Penalty
Order paragraph 4	Failure to develop and/or submit the SOP.	$100 per week
Order paragraph 5	Failure to conduct employee training and/or failure to submit documentation.	$100 per week

11. 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.

12. 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 an additional penalty of 10 percent, payable to the fund designated in Order Paragraph #7 and #8 and shall be payable to IDEM in the manner specified in Paragraph #9, above.

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

14. 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.

15. 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.

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

17. 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.

18. 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.

19. 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.

20. 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.

21. 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.

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

TECHNICAL RECOMMENDATION: Department of Environmental Management			RESPONDENT:
By:			By:
	Jennifer Reno, Chief		Printed:
	Land Enforcement Section		Title:
	Compliance Branch
	Office of Land Quality
Date:	6/15/2023		Date:
			COUNSEL FOR RESPONDENT:
			By:
			Printed:
			Date:
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS		DAY OF		, 20_____
			For the Commissioner:
			Signed 7/13/2023
			Peggy Dorsey
			Assistant Commissioner
			Office of Land Quality