STATE OF INDIANA		)	SS:	BEFORE THE INDIANA DEPARTMENT OF
		)
COUNTY OF MARION		)		ENVIRONMENTAL MANAGEMENT
COMMISSIONER OF THE DEPARTMENT					)
OF ENVIRONMENTAL MANAGEMENT,					)
					)
Complainant,					)
					)
	v.				)	Case No. 2022-29022-H
					)
D.R. HORTon, INC. - midwest,					)
					)
Respondent.					)

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 D.R. Horton, Inc. - Midwest (“Respondent”), which owns/operates the property with United States Environmental Protection Agency (“EPA”) ID No. INR000152215 located at 601 North Wisconsin Street, in Hobart, Lake 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”) to:

D.R. Horton, Inc. – Midwest	C T Corporation System, Registered Agent
Attn: Christopher Lester, Vice President	for D.R. Horton, Inc. – Midwest
1750 East Golf Road; Suite 925	334 North Senate Avenue
Schaumburg, IL 60173	Indianapolis, IN 46204

5. Respondent notified EPA of Large Quantity Generator activities in 2022.

6. Respondent is a commercial home builder.

7. 329 Indiana Administrative Code (“IAC”) 3.1 incorporates federal hazardous waste management requirements found in 40 Code of Federal Regulations (“CFR”) Parts 260 through 270 and Part 273, including those identified below.

8. During an investigation including a record review on October 17, 2022, conducted by a representative of IDEM, the following violations were found:

a. Pursuant to 40 CFR 265.1, minimum established national standards must be met that define the acceptable management of hazardous waste during the period of interim status and until certification of final closure or, if the facility is subject to post-closure requirements, until post closure responsibilities are fulfilled.

As noted during the record review, Respondent’s pre-excavation testing results indicated that the total arsenic concentration in two (2) of forty-eight (48) discrete samples of in-situ soils contained total concentrations of arsenic exceeding twenty times the Toxicity Characteristic Leaching Procedure (“TCLP”) limit. The soils would be D004 characteristic waste when generated (excavated). Without a TCLP test result indicating otherwise, soil containing total concentrations of arsenic exceeding twenty times the TCLP limit would be D004 characteristic waste when generated (excavated).

The Respondent excavated the soil with arsenic concentrations exceeding twenty times the TCLP limit and placed them lesser contaminated excavated soils in two stockpiles onsite (Area B-North and Area B-South stockpiles), with the intention to characterize the stockpiled soils and obtain IDEM approval to use the stockpiles in berms at the site. For characterization and to support onsite reuse of the stockpiled soil, Respondent collected a composite sample from the Area B-North stockpile and a composite sample from the Area B-South stockpile and tested these samples for TCLP herbicides, TCLP pesticides, and TCLP Resource Conservation and Recovery Act (RCRA) 8 Metals. The TCLP testing results indicated no detectable concentrations of contaminants of concern equal to or exceeding the toxicity characteristic regulatory levels in 40 CFR 261.24 Table 1. Although the TCLP testing results were below the toxicity characteristic levels, IDEM determined that these composite samples could not be used to support a non-hazardous waste determination of the Area B-North stockpile and Area B-South stockpile soils. Following discussions with IDEM, in an attempt to obtain comparable in situ soil for TCLP testing to support a non-hazardous waste determination of the stockpiled soil, Respondent attempted but could not identify additional in situ soils at the site with arsenic levels equal to or exceeding the two samples that exceeded twenty times the TCLP limit. Additionally, one in situ soil sample from a lot at the site owned by a third party was identified that contained a total arsenic concentration exceeding twenty times the TCLP limit. TCLP testing of the sample was completed, and results did not equal or exceed the toxicity characteristic regulatory levels in 40 CFR 261.24 Table 1. The TCLP testing results of this sample were provided to IDEM. However, because the total arsenic concentration of this soil sample was less than the total arsenic concentrations of the two samples of in situ soil Respondent had excavated, IDEM determined the TCLP result could not be used to support a non-hazardous waste determination for soils in the Area B-North and Area B-South stockpiles. IDEM determined that Area B-North and Area B-South stockpiles were unpermitted hazardous waste piles on the site.

b. Pursuant to 329 IAC 3.1-1-10, 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 record review, Respondent failed to notify the Commissioner of hazardous waste storage activities.

c. Pursuant to 40 CFR 270.1(c), a permit is required for the treatment, storage, and disposal of any hazardous waste as identified or listed in 40 CFR Part 261.

As noted during the record review, Respondent stored hazardous waste identified or listed in 40 CFR Part 261 without a permit. Specifically, Respondent stored two (2) waste piles of D004 hazardous waste without a permit in the Area B-North and Area B-South stockpiles at the site.

d. Pursuant to 40 CFR 265.250, owners and operators of facilities that treat and store hazardous waste in piles, except as 40 CFR 265.1 provides otherwise, must comply with 40 CFR 265 Subpart L.

Respondent failed to meet the requirements of 40 CFR 265 Subpart L when it created two (2) waste piles of D004 hazardous waste in the Area B-North and Area B-South stockpiles at the site.

9. On March 10, 2023, Respondent provided documentation to IDEM that Respondent had ceased hazardous waste storage activity at the site, in compliance with 329 IAC 3.1-1-10 and 40 CFR 270.1(c).

10. On March 10, 2023, Respondent provided documentation to IDEM of removal and offsite disposal, including soil excavated approximately one foot below grade, of two (2) piles of D004 hazardous waste located in the Area B-North and Area B-South stockpiles at the site.

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 acknowledges notice of this right and 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 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 rules listed in the findings of fact above.

3. All submittals required by this Agreed Order, unless IDEM notifies the Respondent otherwise in writing, shall be sent to:

Debbie Chesterson, Enforcement Case Manager

Office of Land Quality

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

4. Pursuant to IC 13-30-4-1, Respondent is assessed and agrees to pay a civil penalty of Nine Thousand Dollars ($9,000). After this Agreed Order is adopted (signed by the Assistant Commissioner of the Office of Land Quality), Respondent shall pay by the due date printed on the Invoice that will be attached to the adopted Agreed Order.

Civil and stipulated penalties are payable to the “Environmental Management Special Fund” by:

Mail:

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

Online:

Accounts Receivable is accepting payments online by e-Check, Master Card, Visa or Discover. Please visit www.IN.gov/IDEM. Under Online Services, click Online Payment options and follow the prompts. A processing fee of $1 plus 1.99% will be charged for credit card payments.  A processing fee of $1.00 will be charged for eCheck payments.

The Case Number is required to complete the process.

Phone:

You may also call us at 317-234-3099 and follow the instructions for Master Card, Visa or Discover payments. A processing fee of $1 plus 1.99% will be charged for credit card payments.  A processing fee of $1.00 will be charged for eCheck payments.

The Case Number is required to complete the process.

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 an additional penalty of 10 percent, 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 the 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.

REMAINDER OF PAGE LEFT BLANK INTENTIONALLY

TECHNICAL RECOMMENDATION: Department of Environmental Management			RESPONDENT:
By:			By:
	Jennifer Reno, Chief		Printed:
	Land Enforcement Section		Title:
	Compliance Branch
	Office of Land Quality
Date:	3/27/2023		Date:
			COUNSEL FOR RESPONDENT:
			By:
			Printed:
			Date:
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS		DAY OF		, 20_____
			For the Commissioner:
			Signed on 04/18/23
			Peggy Dorsey
			Assistant Commissioner
			Office of Land Quality