STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT
) SS: OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION )
COMMISSIONER OF THE DEPARTMENT )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
) CAUSE NO. Cause No~ SW-387
v. )
)
Respondent-CAPS~R&M ENTERPRISES, INC. )
d/b/a Feddeler Construction/Demolition Landfill)
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. Pursuant to IC 13-30-3-3, entry into the terms of this Agreed Order
does not constitute an admission of any violations contained herein.
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.
Respondent is R&M Enterprises, Inc. (hereinafter referred to as "Respondent"), who is a
company doing business as Feddeler Construction/Demolition (C/D) Landfill ("Site")Site location~,
located at 10100 West 181st Avenue, Lowell, Lake County, Indiana.
The Indiana Department of Environmental Management ("IDEM") has jurisdiction over
the parties and subject matter of this action.
Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation via Certified Mail to:
Mr. Robert Feddeler, Owner
R & M Enterprises, Inc.
18501 Clark Road
Lowell, Indiana 46356
IC 13-30-2-1(7) which states that a person may not: "Construct, install, operate, conduct,
or modify, without prior approval of the department, any equipment or facility of any
type that may: (A) cause or contribute to pollution; or (B) be designed to prevent
pollution. However, the commissioner or the appropriate board may approve
experimental uses of any equipment, facility, or pollution control device that is
considered necessary for the further development of the state of the art of pollution
control." On May 14, 1998, the Complainant determined that Respondent had violated
this statute by filling certain areas of the Site above and beyond the final fill contours
specified in the site map dated May 29, 1981, which had been submitted to the IDEM's
predecessor agency in support of the application for a solid waste facility permit.
329 IAC 10-13-6(d) which states: "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. The application must provide the rationale for
such modification to the commissioner for review. If the commissioner determines that
the requested modification is consistent with the standards established in this article, the
commissioner shall grant the modification. Only the conditions subject to modifications
are reopened. The commissioner shall give notice to the permittee of the determination
on the modification in accordance with IC 13-7-10-5 and IC 4-21.5-3-7 ." (IC 13-7-10-5
has been recodified at IC 13-15-7). On May 14, 1998, the Complainant determined that
Respondent had violated this regulation by filling certain areas of the Site above and
beyond the approved final fill contours for the Site without obtaining a permit
modification from IDEM.
329 IAC 10-13-4(c) which states: "The permittee shall construct and operate a solid
waste land disposal facility in accordance with the permit. The owner, operator, and
permittee are equally responsible for complying with the conditions of the permit, the
regulations, and the statutes." On May 14, 1998, the Complainant determined that
Respondent had violated this regulation by filling certain areas of the Site above and
beyond the permitted final fill contours for the Site.
The Complainant has determined that the Respondent has overfilled 66,000 cubic yards
of construction/demolition material located on the southwest portion of the landfill.
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. Within thirty (30) days from the Effective Date of this Agreed Order, Respondent shall
submit a minor modification application for Permit No. 45-08 to allow the 66,000 cubic
yards of overfilled material to remain in place. A revised final contour map shall be
included in the minor modification application. Such an application will have to be
evaluated on its own merits.
3. If the minor modification application is approved, the Respondent shall leave the 66,000
cubic yards in place as pursuant to the minor modification approval.
4. If the minor modification application is denied, the Respondent shall do the following:
a. Respondent shall within two hundred and ten (210) days of the Effective Date of
this Agreed Order, excavate the overfill that exists above the permitted landfill
boundary. Respondent shall dispose of all waste excavated in the approved fill
area of the Site or at another permitted solid waste facility.
b. Respondent shall notify IDEM within ten (10) working days of the date that
excavation shall take place.
c. Respondent shall within two hundred and seventy (270) days of the Effective Date
of this Agreed Order, apply final cover, grade and seed the areas filled to
approved final contours in accordance with 329 IAC 10.
d. Respondent shall within two hundred and eighty-five (285) days of the Effective
Date of this Agreed Order, submit certification from a Professional Engineer or a
Registered Land Surveyor confirming compliance with this Agreed Order and the
approved final contour map. Respondent shall submit receipts from other
permitted solid waste facilities, if the waste was deposited offsite.
Respondent shall not conduct any unpermitted activities at the Site.
Upon the Effective Date of this Agreed Order, the Respondent shall properly implement
and/or maintain all necessary erosion control measures at the Site and on the fourteen
(14) acres leased by the Respondent north of the Site.
All submittals required by this Agreed Order, unless notified otherwise in writing, shall
be sent to:
Case Manager~ Brett E. DeBusk, Enforcement Case Manager
Office of Enforcement
Indiana Department of Environmental Management
100 North Senate Avenue
P.O. Box 6015
Indianapolis, Indiana 46206-6015
The Respondent is hereby assessed a Civil Penalty of Ninety Eight Thousand Eight
Hundred Sixty Two Dollars and Fifty Cents ($98,862.50). Within thirty (30) days of the
Effective Date of the Agreed Order, the Respondent shall pay a cash penalty of Nine
Thousand Eight Hundred Eighty-six Dollars and Twenty-five Cents ($9,886.25). The
payment shall be submitted to the Environmental Management Special Fund, as directed
by Order Condition 13. In lieu of payment of the remaining Civil Penalty of Eighty-eight
Thousand Nine Hundred Seventy-six Dollars and Twenty-five Cents ($88,976.25) (the
"Contingent Penalty"), the Respondent shall perform and complete the Supplemental
Environmental Project ("SEP"), as described in Order Condition 9. If the SEP is not
completed in accordance with this agreement or 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 Contingent Penalty that has not been discharged by partial
performance of the SEP (as determined pursuant to Order condition 9), plus interest at the
rate established by IC 24-4.6-1-101, to the Environmental Management Special Fund.
Payment of the remaining Contingent Penalty shall be submitted within thirty (30) days
from receipt of a notice to pay from IDEM. Interest on the remaining Civil Penalty shall
be paid from the Effective Date of this Agreed Order.
The SEP expenditure amount is determined by applying an offset ratio of 2:1 to the
Contingent Penalty (the assessed civil penalty minus the cash penalty amount). Thus,
Respondent shall expend a minimum of One Hundred Seventy-seven Thousand Nine
Hundred Fifty-two Dollars and Fifty Cents ($177,952.50) on a SEP as proposed by
Respondent herein, which proposal is hereby conceptually approved by Complainant.
Specifically, Respondent proposes to provide earthmoving equipment and equipment
operators for performance of earthmoving activities at a site or sites to be identified by
the Complainant. Respondent will be given a credit against the SEP expenditure amount
for earthmoving work performed under the SEP as valued in accordance with the cost
schedule which is attached hereto as Schedule A and incorporated herein by reference.
Complainant shall provide Respondent, upon reasonable notice, with project
specifications for the SEP, including a list of work site(s), an overall schedule for work to
be completed in implementation of the SEP, and a contact person or persons for
Complainant regarding the project work. Complainant and Respondent shall consult on
the scheduling of specific project activities so as to reasonably coordinate such activities
with the demands of R&M's operations at its C/D facility. These project specifications
shall be deemed to be made a part of this Agreed Order and incorporated herein by
reference. If, two years after the Effective Date of this Agreed Order, the Respondent has
not expended $177,952.50 on IDEM approved SEP(s), the Respondent shall pay an
amount equal to one-half of the remaining balance of the SEP expenditure amount to the
Environmental Management Special Fund pursuant to Order Condition 8.
Upon request, the Respondent shall submit certified payroll stubs to verify the actual
payroll cost that the Respondent has spent for the SEP. In addition, Respondent shall
submit verification of cost spent on SEP pursuant to the project specifications.
In the event the following terms and conditions are violated, the Complainant may assess
and the Respondent shall pay a stipulated penalty in the following amounts:
Violation Penalty
Order Condition # 2 $100 per day for failure to submit
application and contour map by the specified
date.
Order Condition # 4(a-d) $1,000 per day for failure to meet milestone
dates.
Order Condition # 6 $500 per day for failure to properly
implement and/or maintain erosion control
measures
Order Condition #10 $100 per day for failure to submit payroll
reports.
12. Stipulated penalties shall be due and payable within thirty (30) days after Respondent receives written notice that the Complainant has determined a stipulated penalty is due. Assessment and payment of stipulated penalties shall not preclude the Complainant from seeking any additional relief against the Respondent for violation of the Agreed Order. In lieu of assessment of any of the stipulated penalty given above, the Complainant may
seek any other remedies or sanctions available by virtue of Respondent's violation of this
Agreed Order, or Indiana Law, including but not limited to civil penalties pursuant to IC
13-30-4.
13. Civil and stipulated 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
14. In the event that the cash penalty amount required by Order Condition 8 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.
15. "Force Majeure", for 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 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 the 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.
16. This Agreed Order shall apply to and be binding upon the Respondent, its officers,
directors, principals, agents, 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. 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.
17. 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.
18. This Agreed Order shall remain in effect until Respondent has complied with all terms and conditions of this Agreed Order.
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:
Signed on April 13, 1999
Felicia Robinson George
Assistant Commissioner
Office of Enforcement
Converted by Andrew Scriven