STATE OF
INDIANA |
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BEFORE THE
INDIANA DEPARTMENT OF |
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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 #
2019-26527-H |
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indiana Air national guard 122 FW, |
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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 Indiana Code (“IC”) 13-13-1-1.
2.
Respondent is Indiana Air National Guard 122 FW
(“Respondent”), which owns/operates the facility with United States
Environmental Protection Agency (“EPA”) ID No. IND 000 816 025, located at 3005
Ferguson Rd., in Fort Wayne, Allen 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/personal service to:
Christopher
Campbell |
Indiana
Air National Guard 122 FW |
3005
Ferguson Rd. |
Fort
Wayne, IN 46809 |
5. Respondent most recently notified the EPA
and IDEM of Small Quantity Generator (“SQG”) activities. IDEM has no indication
that Respondent ceased SQG activities at the Site in 2018, and thus believes
that Respondent was required to submit a 2018 annual manifest report by March
1, 2019.
6. IDEM developed annual manifest
reporting forms called the ID Form and the Form OS.
7. IDEM’s, Regulatory Reporting Section,
sent electronic emails to Respondent on December 26, 2018 stating IDEM records
indicate Respondent is either a SQG or LQG generator of hazardous waste in at
least one calendar month in 2018. If
this was not correct Respondent was to update the Handler ID Form which was
attached to the email. On May 1, 2019, IDEM
sent another email that IDEM had not yet received Respondent’s 2018 annual manifest
report and requiring that it be submitted within thirty (30) days.
8. A Violation Letter was issued to
Respondent on July 10, 2019, stating that IDEM has not yet received
Respondent’s 2018 annual manifest report and required that it be submitted by
July 26, 2019.
9. During an investigation conducted by a
representative of IDEM, the following violation was found:
a. Pursuant to IC 13-22-4-3.1(b), an 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 January 14, 2020, Respondent had not submitted a 2018
annual manifest report.
10. Respondent submitted the 2018 Annual
Manifest Report via email on February 18, 2020.
11. 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
acknowledge 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 is assessed and agrees to
pay a civil penalty of Two Thousand and Two Hundred Dollars ($2,200). Said
penalty amount shall be due and payable to the “Environmental Management
Special Fund” within thirty (30) days of the Effective Date; the 30th
day being the “Due Date.”
3. 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 |
4. 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 3, above.
5. Signatories to this Agreed Order
certify that they are fully authorized to execute this Agreed Order and legally
bind the party they represent.
6.
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.
7.
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.
8.
Respondent shall ensure that all contractors,
firms, and other persons performing work under this Agreed Order comply with
the terms of this Agreed Order.
9.
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.
10.
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.
11.
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.
12.
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 violation specified
in the NOV.
13.
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.
14.
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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Office of Land Quality |
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