STATE OF
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BEFORE THE
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COUNTY OF
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ENVIRONMENTAL
MANAGEMENT |
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COMMISSIONER
OF THE DEPARTMENT |
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OF
ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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Case No. 2019-26407-H |
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MWS Wood
Designs, LLC, |
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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 MWS Wood Designs, LLC, which owns and operates the facility with Business ID
Number 201903041308325, Non-Notifier INX000067869, located at 10811 East 875
North in Odon, Daviess 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, on January 8, 2020, IDEM issued a Notice of Violation (“NOV”)
via UPS to:
MWS Wood
Designs, LLC |
Attn: Marvin
E. Wittmer, Principal Member and Registered Agent |
Joyce A. Wittmer, Principal Member |
10716 East
875 North |
Odon,
Indiana 47562 |
5.
During
an investigation and a record review conducted by an IDEM representative on August
20, 2019, the following violations were found:
a. Pursuant to 329 Indiana Administrative
Code (IAC) 3.1-1-10 and 329 IAC 3.1-1-11(c), every hazardous waste generator,
transporter, or owner or operator of a hazardous waste facility shall notify
the commissioner of its hazardous waste activity on the approved forms.
As noted during the August 20, 2019
inspection, Respondent failed to notify the Commissioner of hazardous waste
generator activities.
On or before February 3, 2020,
Respondent obtained an EPA ID Number.
b. Pursuant to IC 13-22-4-3.1(b), a
hazardous waste small quantity generator (SQG), i.e., a person that generates,
in any one or more calendar months of a calendar year:
a) more than one
hundred (100) kilograms but less than one thousand (1,000) kilograms of
hazardous waste;
b) less than one
(1) kilogram of acute hazardous waste; or
c) less than one
hundred (100) kilograms of material from the cleanup spillage of acute
hazardous waste; or
accumulates at least one thousand
(1,000) kilograms of hazardous waste or less than one (1) kilogram of acute
hazardous waste shall, before March 1 of each year, submit to the department on
forms provided by the department, a report that summarizes the person's
hazardous waste shipments during the previous calendar year.
A review of IDEM records pertaining to
the Site revealed that, as of August 20, 2019, Respondent had not submitted a 2018
annual manifest report.
On or before February 3, 2020,
Respondent submitted the 2018 annual manifest report.
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 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 Respondent. This Agreed Order shall have no
force or effect until the Effective Date.
2.
Respondent shall comply with the statutes,
rules, and permit conditions listed in the findings of fact above.
3.
Respondent is assessed and agrees to pay a
civil penalty of Seven Thousand Two Hundred Dollars ($7,200). Said
penalty amount shall be due and payable to the “Environmental Management
Special Fund” in twelve (12) monthly installments. The monthly installment payments shall be Six
Hundred Dollars ($600) each. The first
installment shall be due within thirty (30) days of the Effective Date and the
remaining installment payments shall be made every 30 days thereafter. Interest shall accrue on unpaid amounts at
the rate established by IC 24-4.6-1-101.
4.
Civil
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 |
5.
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 4 above.
6.
Signatories to this Agreed Order certify that
they are fully authorized to execute this Agreed Order and legally bind the
party they represent.
7.
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.
8.
No change in ownership, corporate, or
partnership status of Respondent shall in any way alter Respondent’s status or
responsibilities under this Agreed Order.
9.
Respondent shall ensure that all contractors,
firms, and other persons performing work under this Agreed Order comply with
the terms of this Agreed Order.
10.
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.
11.
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.
12.
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.
13.
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.
14.
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.
15.
This
Agreed Order shall remain in effect until IDEM issues a Resolution of Case
letter to Respondent.
TECHNICAL
RECOMMENDATION: |
RESPONDENT: |
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Department of Environmental Management |
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By:________________________ |
By:
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Linda
McClure, Section Chief |
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Enforcement
Section |
Printed: ______________________ |
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Office of
Land Quality |
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Title: ________________________ |
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Date: _______________ |
Date: _______________________ |
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COUNSEL FOR RESPONDENT: |
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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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DAY OF |
________________________, 20_____. |
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For the Commissioner: |
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Signed 3/18/20______ |
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Peggy Dorsey, Assistant Commissioner |
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