STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT
) SS: OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION )
COMMISSIONER OF THE DEPARTMENT )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
) CAUSE NO. SW-309
v. )
)
CITY OF RICHMOND )
)
Respondent. )
The Complainant and the 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.
1. Complainant is the Commissioner (hereinafter referred to as "Complainant") of the Indiana Department of Environmental Management, a department of the State of Indiana created by IC 13-13-1-1.
2. Respondent is the City of Richmond (hereinafter referred to as "Respondent"), who owns and operates the New Paris Pike Landfill, located at 3610 New Paris Pike, Richmond, Wayne County, Indiana ("the Site").
3. The Indiana Department of Environmental Management ("IDEM") has jurisdiction over the parties and subject matter of this action.
4. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation via Certified Mail to:
The Honorable Roger Cornett Mr. Ralph Willis
Mayor of Richmond Richmond Sanitary District
2380 Liberty Avenue 2380 Liberty Avenue
Richmond, Indiana 47374 Richmond, Indiana 47374
5. IDEM conducted a survey on March 13, 1996, and inspections on May 13, 1996; and July 7, 1996, at the Site.
6. During the above noted survey and inspections the Respondent was found in violation of:
a. IC 13-30-2-1(7) (IC 13-7-4-1(6) prior to July 1, 1996), which requires, in part, that no person shall "construct, install, operate, conduct, or modify, without prior approval of the department, any equipment or facility of any type which may cause or contribute to pollution or which may be designed to prevent pollution." This violation is based on the fact that during the survey and inspections it was observed that the Respondent deviated from its permit by overfilling the Phase 1 cell.
b. 329 IAC 10-13-6(d) (329 IAC 2-8-11(c) prior to April 13, 1996), which requires, in part, that "to request a change in the facility plans or operation, the permittee must request that the commissioner modify the permit before any permitted changes are made in the approved plans." This violation is based on the fact that during the survey and inspections it was observed that the Respondent deviated from its permit by overfilling the Phase 1 cell.
c. 329 IAC 10-13-4(c), which requires that "the permittee shall construct and operate a solid waste disposal facility in accordance with the permit and that the owner, operator, and permittee are equally responsible for complying with the conditions of the permit, the regulations, and the statutes." This violation is based on the fact that during the survey and inspections it was observed that the Respondent deviated from its permit by overfilling the Phase 1 cell.
7. In recognition of the settlement reached, Respondent waives any right to administrative and judicial review of this Agreed Order.
1. This Agreed Order shall be effective ("Effective Date") when it is approved by the Complainant or his delegate, and has been received by the Respondent. This Agreed Order shall have no force or effect until the Effective Date.
2. The Respondent shall not, after the Effective Date of this Order, deposit additional regulated solid waste in the Phase I cell of the landfill.
3. The Respondent has applied for a minor modification to Solid Waste Facility Permit FP #89-2 to correct the overfilling violation. If the modification is denied, the Respondent shall excavate the overfilled waste as determined by IDEM.
4. Respondent is assessed a civil penalty of $114,357. Within thirty (30) days of the Effective Date of this Agreed Order, the Respondent shall pay a cash penalty of $22,871.40. The payment shall be submitted to the Environmental Management Special Fund, as directed by Order Condition #10. In lieu of payment of the remaining Civil Penalty, the Respondent shall perform and complete the Supplemental Environmental Project ("SEP"), described below. The total funds expended on the SEP shall be a minimum of $182,971.20. If the SEP is not completed in accordance with this agreement and within the specified time period, subject to any extension for cause due to force majeure, the Respondent agrees to pay the remaining amount of the Civil Penalty, plus interest at the rate established by IC 24-4.6-1-101, to the Environmental Management Special Fund. Payment of the remaining Civil Penalty shall be submitted within fifteen (15) days from receipt of a notice to pay from the IDEM. Interest on the remaining Civil Penalty shall be paid from the Effective Date of this Agreed Order.
5. As performance of a SEP the Respondent shall, within three (3) years of the Effective Date of this Agreed Order, expend a minimum of $182,971.20 on the remediation of open dumps.
6. Credit will be given for each remediation project if all of the following conditions have been met and final project expenditures have been approved by IDEM.
a. Prior to the beginning of any remediation: 1) each site must be inspected by an IDEM representative to confirm the site meets IDEM's SEP Policy criteria; and, 2) at the time of the inspection, the Respondent shall provide IDEM with an estimated cost for the remediation.
b. Following the completion of each remediation, each site must be inspected by IDEM staff and found in compliance with IC 13 and 329 IAC 10.
c. The Respondent must submit: 1) a summary of remediation work completed at the site; 2) documentation of proper disposal of all solid waste; and, 3) documentation of final cleanup expenditures.
7. The Respondent shall submit documentation of expenditures for each cleanup within ten (10) days of completing each project.
8. "Force Majeure," for the purposes of this Agreed Order, is defined as any event arising from causes beyond the control of the Respondent that delays or prevents the performance of any obligation under this Agreed Order despite the Respondent's best efforts to fulfill the obligation. The requirement that the Respondent exercise "best efforts to fulfill the obligation" includes using best efforts to anticipate any potential force majeure event and best efforts to address the effects of any potential force majeure event (1) as it is occurring and (2) following the potential force majeure event, such that the delay is minimized to the greatest extent possible. "Force Majeure" does not include financial inability to complete the work required by this Agreed Order or increases in costs to perform the work.
The Respondent shall notify IDEM by calling within three (3) calendar days and by writing no later than seven (7) calendar days after any event which the Respondent contends is a force majeure. Such notification shall describe the anticipated length of the delay, the cause or causes of the delay, the measures taken or to be taken by the Respondent to minimize the delay, and the timetable by which these measures will be implemented. The Respondent shall include with any notice all available documentation supporting their claim that the delay was attributable to a force majeure. Failure to comply with the above requirements shall preclude Respondent from asserting any claim of force majeure for that event. The Respondent shall have the burden of demonstrating that the event is a force majeure. The decision of whether an event is a force majeure shall be made by IDEM. Said decision shall be communicated to that Respondent.
If a delay is attributable to a force majeure, IDEM shall extend, in writing, the time period for performance under this Agreed Order, by the amount of time that is attributable to the event constituting the force majeure.
9. All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:
Lori Colpaert, Enforcement Case Manager
Office of Enforcement
Indiana Department of Environmental Management
100 North Senate Avenue
P.O. Box 6015
Indianapolis, Indiana 46206-6015
10. Civil penalties are payable by check to the Environmental Management Special Fund. Checks shall include the Cause Number of this action and shall be mailed to:
Cashier
IDEM
100 North Senate Avenue
P.O. Box 7060
Indianapolis, Indiana 46207-7060
11. In the event that the civil penalty required by Order Condition #4 is not paid within thirty (30) days of the Effective Date of this Agreed Order, Respondent shall pay interest on the unpaid balance at the rate established by IC 24-4.6-1-101. The interest shall continue to accrue until the civil penalty is paid in full.
12. This Agreed Order shall apply to and be binding upon the Respondent, its, successors, subsidiaries, and assigns. The Respondent's signatories to this Agreed Order certify that they are fully authorized to execute this document and legally bind the parties they represent. No change in ownership, corporate, or partnership status of the Respondent shall in any way alter its status or responsibilities under this Agreed Order.
13. 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 the Agreed Order did not contain the invalid terms.
14. The Respondent shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights are transferred. Respondent shall ensure that all contractors, firms and other persons performing work under this Agreed Order comply with the terms of this Agreed Order.
15. This Agreed Order shall remain in effect until Respondent has complied with all terms and conditions of this Agreed Order
TECHNICAL RECOMMENDATION: RESPONDENT:
Department of Environmental Management
By:___________________________ By:____________________________
Paul Higginbotham, Chief
Solid Waste Section Printed:________________________
Office of Enforcement
Title:__________________________
Date:_________________________ Date:__________________________
COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:
Department of Environmental Management
By:___________________________ By:____________________________
Office of Legal Counsel
Department of Environmental Management
Date:__________________________ Date:___________________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS __________ DAY OF __________________, 1998.
For the Commissioner:
Adopted 5/8/98
_________________________
David J. Hensel
Director
Office of Enforcement