Respondent
Name: Irving Materials, Inc. dba E&B
Paving, Inc.
Case
Number: 2019-26478-A
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 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 Indiana Code (“IC”) 13-13-1-1.
2.
Respondent is Irving Materials, Inc. dba
E&B Paving, Inc. (“Respondent”), which owns and operates the portable drum
hot mix asphalt plant with Plant ID No. 099-03285 located at 11246 King Road in
Plymouth, Marshall County, Indiana (“Site”).
3.
IDEM has jurisdiction over the parties and the
subject matter of this action.
John
Tiberi, CEO |
T.
Shawn Burgess, Registered Agent |
Irving
Materials, Inc. |
Irving
Materials, Inc. |
8032
N State Road 9 |
8032
N State Road 9 |
Greenfield,
IN 46140 |
Greenfield,
IN 46140 |
4.
Pursuant to IC 13-30-3-3, IDEM issued a Notice
of Violation (“NOV”) via certified mail to:
5.
Based on IDEM’s review, the following violation
was in existence or identified by a representative of IDEM’s Office of Air
Quality (“OAQ”).
a.
Pursuant to Federally Enforceable State
Operating Permit No. 099-38401-03285 (“Permit”) Condition D.1.9(a), Respondent is
required to perform particulate matter (“PM”), PM10, and PM2.5 stack testing on
the aggregate dryer/mixer at least once every five (5) years from the date of
the last valid compliance demonstration.
Respondent failed to perform the required stack testing by June 24, 2019, five
(5) years after the last valid compliance demonstration, in violation of Permit
Condition D.1.9(a).
6.
Respondent performed PM, PM10, and PM2.5 stack
testing on the aggregate dryer/mixer on August 21, 2019. At the time of writing this Agreed Order, the
results of the test are under review.
7.
In recognition of the settlement reached,
Respondent 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 adopted via signature by Complainant or
Complainant’s delegate, and the adopted Agreed Order has been received by
Respondent. This Agreed Order shall have
no force or effect until the Effective Date.
This offer to settle the allegations contained in this Agreed Order does
not bind or obligate the parties of this enforcement action if the Agreed Order
is not adopted.
2.
Respondent is assessed a civil penalty of Five
Hundred Dollars ($500.00). Respondent
shall pay said penalty amount no later than fifteen (15) days after the
Effective Date (“Due Date”). In the
event that the civil penalty is not paid by the Due Date, Respondent shall pay
interest on the unpaid balance at the rate established by IC 24-4.6-1-101.
3.
In the event the terms and conditions of this
Agreed Order are violated, Complainant may seek additional relief.
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.
This Agreed Order shall apply to and be binding
upon Respondent and its successors and assigns.
Respondent’s signatories to this Agreed Order certify that they are
fully authorized to execute this Agreed Order and legally bind the party they represent. No change in ownership, corporate, or
partnership status of Respondent shall in any way alter its status or
responsibilities under this Agreed Order.
6.
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.
7.
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 its obligation to comply with the
requirements of its applicable permit or any applicable Federal or State law or
regulation.
8.
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.
9.
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 same violations
specified in the NOV.
10.
Nothing in this Agreed Order shall prevent IDEM
or anyone acting on its behalf from communicating with the United States
Environmental Protection Agency (“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 EPA or any other agency or entity.
11.
The parties were free to consult with their
respective counsel regarding entry into this Agreed Order to the extent each
deemed necessary.
TECHNICAL
RECOMMENDATION: |
|
RESPONDENT:* |
|||||
Department
of Environmental Management |
|
Irving Materials, Inc. dba E&B Paving, Inc |
|||||
|
|
|
|||||
By: |
|
|
By: |
|
|||
|
David
P. McIver, Chief |
|
Printed: |
|
|||
|
Enforcement
Section |
|
Title: |
|
|||
|
Office
of Air Quality |
|
|
|
|||
|
|
|
Date: |
|
|||
|
|
|
|
|
|||
|
|
|
|||||
APPROVED
AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
|||||||
MANAGEMENT THIS |
|
DAY OF |
|
,
2019. |
|||
|
|||||||
|
For
the Commissioner: |
||||||
|
|
||||||
|
Signed
on October 31, 2019 |
||||||
|
Matthew Stuckey, Deputy Assistant
Commissioner |
||||||
|
Office
of Air Quality |
||||||
*In the event
that Respondent does not accept the settlement offer contained in this Agreed
Order, IDEM notes that this document is a qualified offer of settlement, and
therefore Rule 408 of Indiana Rules of Evidence applies to this document,
rendering it inadmissible.