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STATE
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BEFORE THE INDIANA DEPARTMENT |
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COMMISSIONER OF THE DEPARTMENT Complainant, v. PEABODY COAL COMPANY, Respondent. |
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AGREED ORDER
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 fact or violation
contained herein. The 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 (hereinafter referred to as “Complainant”)
of the Indiana Department of Environmental Management, a department of the
State of
2. The Respondent is Peabody Coal Company (“Respondent”). Midwest Coal Resources of Indiana, LLC, owns
the Lynnville Mine near State Road 68, Lynnville,
3. The
4. Pursuant to IC 13-30-3-3, on November 29, 2001, IDEM issued
a Notice of Violation via Certified Mail to:
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H.D. Dahl, President CT Corporation System, Registered
Agent |
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800 |
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5.
Representatives
of IDEM conducted investigations at the Lynnville Site as a result of a release
of acid/low pH water to Big Creek that occurred on or around September 10, 2001.
IDEM observed the following violations at the time of these investigations:
A. Pursuant
to 327 IAC 2-1-6(a)(1), all waters at all times and at all places, including
the mixing zone, shall meet the minimum conditions of being free from
substances, materials, floating debris, oil, or scum attributable to municipal,
industrial, agricultural, and other land use practices, or other discharges
that will settle to form putrescent or otherwise objectionable deposits, that
are in amounts sufficient to be unsightly or deleterious, that produce color,
visible oil sheen, odor, or other conditions in such degree as to create a
nuisance, which are in amounts sufficient to be acutely toxic to, or to otherwise
severely injure or kill aquatic life, other animals, plants, or humans, and
which are in concentrations or combinations that will cause or contribute to
the growth of aquatic plants or algae to such a degree as to create a nuisance. Acidic or “low pH water,” a pollutant, was
discharged into Big Creek, a water of the state, in an amount sufficient to be
deleterious and/or in an amount sufficient to be acutely toxic to, or otherwise
severely injure or kill, aquatic life, in violation of 327 IAC 2-1-6(a)(1).
B.
Pursuant to 327
IAC 5-2-2, any discharge of pollutants into waters of the state as a point
source discharge, except for exclusions made in 327 IAC 5-2-4, is prohibited
unless in conformity with a valid NPDES permit obtained prior to the discharge.
Low pH water, a pollutant was discharged into Big Creek, a water of the state,
without a valid NPDES permit, and without meeting any exclusions, in violation
of 327 IAC 5-2-2.
C.
Pursuant to 327
IAC 2-6.1-7, any person who operates, controls or maintains any mode of
transportation or facility from which a spill occurs shall, upon discovery of a
reportable spill to the soil or surface waters of the state contain the spill,
if possible, to prevent additional spilled material from entering the waters of
the state; undertake or cause others to undertake activities needed to
accomplish a spill response; and as soon as possible, but within two (2) hours
of discovery, communicate a spill report to the Department of Environmental
Management, Office of Environmental Response.
Low pH water was discharged into Big Creek, a water of the state. Such discharge, which constituted a
reportable spill, was not properly contained, responded to, or reported, in
violation of 327 IAC 2-6.1-7.
D. Pursuant
to IC 13-30-2-1(1), a person may not discharge, emit, cause, allow, or threaten
to discharge, emit, cause, or allow any contaminant or waste into the
environment or any publicly owned treatment works in any form that causes or
would cause pollution that violates or would violate rules, standards, or
discharge or emission requirements adopted by the appropriate board under the
environmental management laws.
Pollutants were discharged into Big Creek, a water of the state, causing
pollution that violated 327 IAC 2-1-6(a)(1) and/or 327 IAC 5-2-2, which are
rules adopted by the Indiana Water Pollution Control Board, and thus violated
IC 13-30-2-1(1).
E. Pursuant
to IC 13-18-4-5, it is unlawful for any person to throw, run, drain, or
otherwise dispose into any of the streams or waters of this state, or to cause,
permit, or suffer to be thrown, run, drained, allowed to seep, or otherwise
disposed into any waters, any organic or inorganic matter that causes or
contributes to a polluted condition of any waters, as determined by a rule of
the board adopted under Sections 1 and 3 of this chapter. Low pH water was discharged into Big Creek, a
water of the state, resulting in a polluted condition of waters in violation of
327 IAC 2-1-6(a)(1), which is a rule adopted by the Indiana Water Pollution Control
Board, and thus violated IC 13-18-4-5.
6. During settlement discussions concerning the Lynnville Site,
Respondent informed IDEM of its acquisition of the Minnehaha Site by American
Land Holdings, and of the low pH water discharge from coal refuse at the
Minnehaha Site by a prior owner. IDEM
staff visited the Minnehaha Site and observed the unpermitted discharge of
pollutants from coal refuse into waters of the state on April 6, 2006.
7. During settlement discussions Respondent
informed IDEM that it expected the Indiana Department of Natural Resources
(“IDNR”), Division of Reclamation, to begin drilling and surveying at the
Minnehaha site by June 1, 2006, preparatory to having work performed at the
refuse pile under IDNR’s
8. IDEM
reserves, and this Agreed Order is without prejudice to, all rights against Respondent
with respect to any violations not expressly included within the Findings of
Fact of this Agreed Order.
Notwithstanding any other provision of
this Agreed Order, the Indiana Natural Resource Co-Trustees reserve the right
to institute proceedings in a new action seeking recovery of Natural Resource
Damages pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act, (“CERCLA”),
42 U.S.C. § 9601 et. seq., the Clean Water Act, 33 U.S.C. § 1251 et seq., or
the Oil Pollution Act, § 2701 et seq. based on the matters addressed herein.
9. 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 approved by Complainant or his 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 327 IAC 2-1-6, 327 IAC 5-2-2,
327 IAC 2-6.1-7, IC 13-30-2-1(1), and IC 13-18-4-5.
3. Upon
the Effective Date, Respondent shall sample the effluent from the final outfall
point at the Lynnville Site (Outfall 001) on a twice-monthly basis, during
discharge. One sample shall be taken of Dry
Weather Base Flow and the other of Wet Weather Flow. For purposes of this Agreed Order, Wet Weather
Flow shall mean the flow occurring within 72 hours following a precipitation
event consisting of one inch or more of precipitation, as determined at the
Pending
such a determination, Respondent shall continue to comply with the sampling and
reporting requirements established in this paragraph for up to six (6) months
following the end of the twelve-month period.
Complainant and Respondent reserve their rights under IC 4-21.5 in the
event that agreement on this determination is not reached.
4. The IDNR
Division of Reclamation is scheduled to implement and complete the reclamation
of the refuse pile at the Minnehaha Site under the AML program. Respondent shall provide access to and
cooperate with IDNR in connection with this work. Respondent understands that IDNR plans to relocate
and/or grade/cover the refuse pile by November 1, 2007, and that reclamation
and revegetation are to be completed by June 30, 2008.
5. Within
sixty (60) days of the Effective Date, Respondent shall devise, install, and
place into operation a means of capture and treatment of the discharge from the
Minnehaha Site refuse pile for the purpose of eliminating the low pH water
discharge from that site into waters of the state.
6. Upon the
Effective Date, Respondent shall sample the effluent discharge from the coal refuse
at the Minnehaha Site (hereby designated as “Outfall 001”) on a twice-monthly
basis, during discharge. At least one
sample shall be taken of Wet Weather Flow during each month, with the remaining
samples being of Dry Weather Base Flow.
For purposes of this Agreed Order, Wet Weather Flow will constitute the
flow occurring within 72 hours following a precipitation event consisting of
one inch or more of precipitation, as determined by the Hulman Regional Airport
(HUF) in
Pending
such a determination, Respondent shall continue to comply with the sampling and
reporting requirements established in this paragraph for up to six (6) months
following the end of this twelve-month period.
Complainant and Respondent reserve their rights under IC 4-21.5 in the
event that agreement on this determination is not reached.
7. If Respondent chooses, as its means of complying with Order
Paragraph Nos. 5 and 6, to capture all flow from the Minnehaha Site refuse pile
and divert it to another outfall location that is covered by an existing NPDES
permit, then the monitoring and other requirements of Order Paragraph Nos. 5
and 6, and the requirement for the two parties to meet, will cease to apply. The sampling and reporting requirements of
the NPDES permit shall then apply. If Respondent
chooses this option, it shall, within sixty (60) days of such a diversion, seek
modification of its existing NPDES permit for the Minnehaha Site to include
redesignation of the outfall from alkaline to acid.
8. Respondent’s obligations under Order
Paragraph Nos. 5, 6, and 7 shall cease once IDNR’s AML reclamation work
commences and a “Rule 7” stormwater permit (pursuant to 327 IAC 15-7) becomes
effective.
9. If Respondent becomes aware of property owned,
operated, or controlled by Respondent or its wholly-owned subsidiaries within
Indiana with unpermitted point source discharges of pollutants to surface
waters of the state (similar to the Lynnville and Minnehaha Sites) associated
with operations of Respondent or its wholly-owned subsidiary at that property,
Respondent shall within forty five (45) days contact IDEM’s Offices of Enforcement and Water Quality as well
as the IDNR Division of Reclamation to establish a plan to bring that discharge/site
into compliance with the applicable Clean Water Act requirements using the
approaches being taken at the Lynnville and Minnehaha Sites under this Agreed
Order as non-binding models.
10. All
submittals required by this Agreed Order, unless notified otherwise in writing,
shall be sent to:
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Steven Carmer,
Environmental Manager |
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Indiana
Department of Environmental Management |
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Office of
Enforcement – Mail Code 60-02 |
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11. Respondent is assessed a civil penalty of Twenty Five Thousand
Dollars ($25,000). Said penalty amount shall be due and payable to the
Environmental Management Special Fund within thirty (30) days of the Effective
Date of this Agreed Order
12. In the event the terms and conditions of the following Order
paragraphs are violated, the Complainant may assess and Respondent shall pay a
stipulated penalty in the following amount:
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Paragraph |
Violation |
Stipulated
penalty |
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3 |
Failure to sample and
report results in a timely basis. |
$300 per week late, or
part thereof. |
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4 |
Failure to enter into an
agreement with IDNR. |
$200 per week late, or
part thereof. |
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4 |
Failure to implement and
complete the project in a timely basis. |
$300 per week late, or
part thereof. |
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5 |
Failure to capture and
treat discharge from the gob pile. |
$700 per week late, or
part thereof. |
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6 |
Failure to sample and
report results in a timely basis. |
$300 per week late, or
part thereof. |
13. Stipulated penalties shall be due and payable within thirty
days after Respondent receives written notice that Complainant has determined a
stipulated penalty is due. Assessment
and payment of stipulated penalties shall not preclude Complainant from seeking
any additional relief against Respondent for violation of the Agreed
Order. In lieu of any of the stipulated
penalties given above, Complainant may seek any other remedies or sanctions
available by virtue of Respondent’s violation of this Agreed Order, or
14. Civil and stipulated 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:
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Indiana Department of Environmental
Management |
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Cashiers Office – Mail
Code 50-10C |
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15. In the event that the civil penalty
required by Order Paragraph No. 11 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.
16. “Force Majeure,” for purposes of this Agreed Order, is defined
as any event arising from causes beyond the control and without fault of the
Respondent that delays or prevents the performance of any obligation under this
Agreed Order despite the 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 solely include changed
business or economic conditions, 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 the case
manager within three (3) calendar days and by writing no later than seven (7) calendar
days after it has knowledge of 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 its claim that the delay was
attributable to a force majeure. Failure
to comply with the above requirements shall preclude the 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.
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 directly attributable to the event constituting the
force majeure.
17. This Agreed Order shall apply to and be binding upon
Respondent, its successors, and assigns.
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 Respondent shall in any way alter its
status or responsibilities under this Agreed Order.
18. In the event that any terms of the 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.
19. 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.
20. 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 the Respondent pursuant to this Agreed Order, shall not in any way relieve
Respondent of its obligation to comply with the requirements of any applicable
permit or order or with any other applicable federal or state law or regulation.
21. 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
or 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.
22. 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 seek additional civil
penalties for the violations specified in the Notice of Violation and
referenced in Finding of Fact No. 5.
23. 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 the Respondent may incur as a result of such communications
with the EPA or any other agency or entity.
24. This Agreed Order shall remain in effect until Respondent has
complied with the terms of Order Paragraph Nos. 3 through 15 and IDEM issues a
Close-Out letter to Respondent.
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TECHNICAL
RECOMMENDATION: |
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RESPONDENT: |
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Department
of Environmental Management |
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By: |
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By: |
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Mark W. Stanifer |
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Printed: |
Mark
R. Yingling |
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Section
Chief, Water Section |
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Title: |
Vice
President |
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Office
of Enforcement |
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Date: |
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Date: |
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COUNSEL
FOR COMPLAINANT: |
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COUNSEL
FOR RESPONDENT: |
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Department
of Environmental Management |
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By: |
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By: |
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Steve
D. Griffin |
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John
M. Kyle III |
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Office
of Legal Counsel |
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Date: |
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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 |
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2006. |
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For
The Commissioner: |
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Signed
on September 21, 2006 |
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Matthew
T. Klein |
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Assistant
Commissioner |
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of
Compliance and Enforcement |
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