STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT

) SS: OF ENVIRONMENTAL MANAGEMENT

COUNTY OF MARION )

COMMISSIONER OF THE DEPARTMENT )

OF ENVIRONMENTAL MANAGEMENT, )

)

Complainant, )

)

v. ) Case No. 2003-13096-W

)

ESSROC CEMENT CORP., )

)

Respondent. )

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 Agreed Order. Pursuant to IC 13-30-3-3(c), entry into the terms of this Agreed Order does not constitute an admission by the Respondent 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 (AComplainant@) of the Indiana Department of

Environmental Management, a department of the State of Indiana created by

IC 13-13-1-1.

2. Respondent is ESSROC Cement Corp. ("Respondent") which owns and operates a facility which manufactures portland cement located on Highway 31 near the Town of Speed, in Clark County, Indiana. The Respondent is authorized by National Pollutant Discharge Elimination System (NPDES) permit No. IN 0002071 (the Permit) to discharge to receiving waters named Muddy Fork of Silver Creek and Silver Creek in accordance with stated effluent limitations, monitoring requirements, and other conditions.

3. The Indiana Department of Environmental Management (AIDEM@) has

jurisdiction over the parties and the subject matter of this action.

4. Pursuant to IC 13-30-3-3, on September 22, 2003, IDEM issued a Notice of

Violation via Certified Mail to:

Robert Rayner, President	C. T. Corporation System, Registered Agent
ESSROC Cement Corp.	ESSROC Cement Corp.
3251 Bath Pike	1 N. Capital Ave, Suite 700
Nazareth, Pennsylvania 18064	Indianapolis, Indiana 46204

5. A records review conducted by IDEM=s Office of Water Quality has determined that the following violations have occurred at the Respondent's WWTP:

A. 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, including any noxious odor either alone or in combination with contaminants from other sources, into the environment 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.

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.

Pursuant to 327 IAC 5-2-8(1) and Part II.A.1 of the Permit, the Respondent is required to comply with all terms and conditions of the Permit. Any permit noncompliance constitutes a violation of the Clean Water Act (CWA) and IC 13 and is grounds for enforcement action.

Pursuant to Part I.A.1 of the Permit, the Respondent is required to comply with the effluent limitations applicable to the discharge from the WWTP Outfalls 001, 002, 004, and 005, contained in Part I.A.1 of the Permit.

Discharge Monitoring Reports and Monthly Reports of Operation submitted by the Respondent to IDEM for the period from July 2000 through March 2003, reveal that the Respondent failed to meet the effluent limitations contained in Part I.A.1 of the Permit as follows:

For Outfall 002, the maximum pH limitation was violated during March, July, and August of 2001, during July and December of 2002, and during February and March of 2003.

For Outfall 002, the daily maximum concentration effluent limitation for TSS was violated during July, August, and September of 2001, during July and September of 2002, and during February of 2003.

For Outfall 002, the monthly average concentration effluent limitation for TSS was violated during July of 2000, during July, August, September, and November of 2001, and during July and September of 2002.

For Outfall 004, the maximum pH limitation was violated during October and December of 2000, during February, November, and December of 2001, during December of 2002, and during January and February of 2003.

For Outfall 004, the daily maximum concentration effluent limitation for TSS was violated during October and November of 2000, during February of 2001, and during February and September of 2002.

For Outfall 004, the monthly average concentration effluent limitation for TSS was violated during October, November, and December of 2000, during February and December of 2001, during February, March, June, September, and December of 2002, and during February of 2003.

For Outfall 005, the maximum pH limitation was violated during July of 2002.

For Outfall 005, the daily maximum concentration effluent limitation for TSS was violated during February and July of 2001, and during February, July, September, and November of 2002.

For Outfall 005, the monthly average concentration effluent limitation for TSS was violated during August of 2000, during February, April, May, July, and September of 2001, and during February, July, September, and October of 2002.

These failures to meet effluent limitations contained in the Permit are in violation of IC 13-30-2-1(1), 327 IAC 5-2-2, 327 IAC 5-2-8(1), Part II.A of the Permit, and Part I.A of the Permit.

B. Pursuant to IC 13-18-11-14, it is unlawful for any person, firm or corporation, both municipal and private, to operate a water or wastewater treatment plant or a water distribution system unless the operator in responsible charge is duly certified by the commissioner under the provisions of this chapter.

Pursuant to 327 IAC 5-22, among the requirements to operate a Class A-SO wastewater treatment plant is for the operator to have at least a Class A-SO operator certification from IDEM.

Part II.A.10 of the Permit provides that the Respondent shall have the waste treatment facilities under the supervision of an operator certified by the Commissioner as required by IC 13-18-11 and 327 IAC 8-12-3 (recodified as 327 IAC 5-22).

MROs submitted by ESSROC Cement Corp. indicate that the Respondent has utilized Brian Graf as the certified operator for the ESSROC Cement Corp. facility since at least June 30, 2001 through March 18, 2003. As noted in letters sent to Brian Graf on July 5, 2001, and November 28, 2001, Brian Graf's operator certification (A-SO operator certification No. 10259) expired on June 30, 2001, and has not been renewed since that date because IDEM did not receive documentation that Brian Graf completed the required continuing education credit hours.

Therefore, the Respondent operated the ESSROC Cement Corp. facility since at least June 30, 2001 through March 18, 2003, without an operator in responsible charge that was duly certified by the commissioner, in violation of IC 13-18-11-14 and Part II.A.10 of the Permit.

6. On October 30, 2003, the Respondent's representatives met with IDEM staff to discuss the causes of the permit effluent limitation exceedences, the operator certification issues noted in the Notice of Violation, and the actions that have been taken by the Respondent to assure compliance with the effluent limitations contained in its NPDES Permit. The Respondent had hired a properly certified operator who had taken over supervision of its wastewater treatment facilities beginning in May of 2003.

7. On December 23, 2003, the Respondent submitted an outline of the corrective actions regarding the permit effluent limitation exceedences pH and TSS and the corrective actions which have been and will be implemented at the facility.

The Respondent purchased a replacement pH control system for the Coal Pile Pond (Outfall 005), which was installed became operational in November of 2003. The Respondent uses this control system to shut down its pumps whenever the pH of the discharge is less than 6.4 s.u. or greater than 8.6 s.u. On October 3, 2003, the Respondent developed written procedures for operation of the coal pile pond and for maintenance of the pH control system. These procedures were revised on November 7, 2003. All the personnel and supervisors at the facility have reviewed and/or been trained on the new procedures. Since the Respondent's implementation of the corrective actions, the Respondent has not reported any violations of its NPDES Permit, effluent limitations.

The Respondent has started the engineering phase of a TSS Control project. As part of this project, the Respondent will replace the existing discharge pump at the Clay Pile Stormwater Pond (Outfall 004) with a submersible pump and install a level actuated pumping system. This will prevent the Clay Pile Stormwater Pond from discharging directly to the creek, except during a large storm event, and should be completed by June 30, 2004. The Respondent has completed the installation of oil booms in front of the discharge of the filter plant points (Outfall 002) and the Clay Pile Stormwater Pond (Outfall 004).

The Respondent also plans to conduct a study to determine the origin of the sources of high TSS and pH, and under what conditions they occur (the TSS and pH Study). The Respondent plans to complete this study by June 30, 2004. As part of this study, the Respondent will:

1) investigate over time the influence that rain events have on TSS and pH;

2) investigate the TSS and pH quality of the filter plant backwash pumped to filter plant points (Outfall 002);

3) measure the water quality of the creek water at points prior to entering the Essroc property and at the Silver Creek pumping station;

4) measure the quality of the water from the Clay Pile Stormwater Pond (Outfall 004) that is pumped to the Coal Pile Pond (Outfall 005), and

8. In recognition of the settlement reached, Respondent waives any right to

administrative and judicial review of this Agreed Order.

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II. ORDER

1. This Agreed Order shall be effective ("Effective Date") when it is approved by the

Complainant or her delegate, and has been received by the Respondent. This Agreed

Order shall have no force or effect until the Effective Date.

2. The Respondent shall comply with the Permit, IC 13-30-2-1(1), 327 IAC 5-2-2, 327 IAC 5-2-8(1), IC 13-18-11-14, and 327 IAC 5-22.

3. By June 30, 2004, the Respondent shall complete the replacement of the existing discharge pump at the Clay Pile Stormwater Pond (Outfall 004) with a submersible pump and install a level actuated pumping system, as described in the TSS Control project in Item 7 of the Findings of Fact.

4. By June 30, 2004, the Respondent shall complete the study to determine the origin of the sources of high pH and TSS, and under what conditions they occur, as described in the TSS and pH Study in Item 7 of the Findings of Fact.

5. By June 30, 2004, the Respondent shall determine what additional corrective actions, if any, it will take to assure compliance with the Permit, and submit written notification of such determination to IDEM. If the Respondent determines that no additional corrective actions are necessary to assure compliance with the Permit, the Respondent shall begin the Performance Period, as describe in Paragraph 8 below, on June 30, 2004. If the Respondent determines that it will take additional corrective actions to assure compliance with the Permit, the Respondent shall include with its written notification of such determination a description of the corrective actions it will take, and a schedule for their completion. The schedule will allow for completion of these additional corrective actions by no later than December 31, 2004 unless IDEM approves a later date in writing. Upon completion of these additional corrective actions, the Respondent shall begin the Performance Period, as described in Paragraph 7 below.

6. Upon completion of the corrective actions required by Paragraph 5, the Respondent shall be subject to stipulated penalties, as described in Order Paragraph 14 below, for the failure to comply with any effluent limitation contained in the Permit during the Performance Period described in Paragraph 7 below.

7. During the 6 months following the completion of the corrective actions required by Paragraph 5 (Performance Period), the Respondent shall demonstrate 6 consecutive months of compliance with all effluent limitations contained in the Permit (Compliance Demonstration).

In the event that Respondent fails to make the Compliance Demonstration, Respondent shall, within sixty days of becoming aware that the Compliance Demonstration cannot be achieved, develop and submit to IDEM, for approval, an “Action Plan” that identifies the additional actions that Respondent will take to achieve and maintain compliance with all effluent limitations contained in the Permit. The Action Plan, if required, shall include a schedule, including specific milestone dates for initiating and completing the actions contained therein.

8. The Action Plan required by Order Paragraph 7 is subject to IDEM approval. If IDEM reasonably deems the plan inadequate, a revised plan shall be submitted within fifteen days of receipt of notice from IDEM of the inadequacies thereof. If, after submission of the first revised plan, IDEM still reasonably finds the plan to be inadequate, then IDEM will request further modification of the plan as necessary to meet IDEM’s reasonable requirements, and require re-submittal of the plan by a specific date. If the subsequently submitted second revised plan does not meet IDEM’s approval, IDEM will suggest specific modifications to be made to the plan and require re-submittal by a specific date. If, by the specified date, the Respondent does not submit a third revised plan that incorporates the IDEM-suggested modifications or submit an alternative adequate plan (as reasonably determined by IDEM), the IDEM-suggested modifications will be deemed incorporated into the plan.

9. The approved Action Plan shall be incorporated into this Agreed Order and shall be deemed an enforceable part thereof. The Respondent, upon receipt of written approval from IDEM, shall immediately implement the approved plan and adhere to the milestone dates therein.

10. The Respondent shall notify IDEM, in writing, within 10 days of completion of

each action contained in the approved Action Plan. The notification shall include a description of the action completed and the date it was completed.

11. Beginning on the Effective Date of this Agreed Order and continuing until the completion of terms and conditions of this Agreed Order, the Respondent shall, at all times, operate its wastewater operations according to all applicable legal requirements.

12. All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:

Terry Ressler, Case Manager, Water Enforcement Section

Office of Enforcement, IGCN, Rm. 1315

Indiana Department of Environmental Management

100 N. Senate Avenue

P.O. Box 6015

Indianapolis, IN 46206-6015

13. Respondent is assessed a civil penalty of Nineteen Thousand Two Hundred Dollars ($19,200). Said penalty amount shall be due and payable to the Environmental Management Special Fund within 30 days of the Effective Date of this Agreed Order.

14. In the event the terms and conditions of the following paragraphs are violated, the Complainant may assess and the Respondent shall pay a stipulated penalty in the following amount:

Order Paragraph Number	Violation	Penalty Amount
3	Failure to complete the replacement of the pump by June 30, 2004.	$250 per each week
5	Failure to determine what additional corrective actions, if any, it will take to assure compliance with the Permit, and submit written notification of such determination to IDEM.	$250 per each week
5	If additional corrective actions will be taken, failure to complete these additional corrective actions by December 31, 2004.	$250 per each week
6	Upon completion of the corrective actions, failure to comply with any effluent limitation contained in the NPDES Permit during the Performance Period.	$500 per violation
7	If the Respondent fails to make the Compliance Demonstration, failure to submit an Action Plan by the required time.	$250 per each week
8	Failure to submit any revised plan by the required time.	$250 per each week
9	Failure to implement the approved plan for improvements or adhere to the milestone dates contained therein.	$250 per each week
10	Failure to timely submit any notification of completion of an action contained in the approved plan.	$250 per each week

15. Stipulated penalties shall be due and payable within 30 days after Respondent receives written notice that the Complainant has reasonably determined a stipulated penalty is due. Assessment and payment of stipulated penalties shall not preclude the Complainant from seeking any additional relief against the Respondent for violation of the Agreed Order. In lieu of any of the stipulated penalties given above, the Complainant may seek any other remedies or sanctions available by virtue of Respondent=s violation of this Agreed Order or Indiana law, including, but not limited to, civil penalties pursuant to IC 13-30-4.

16. 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:

Cashier

Indiana Department of Environmental Management

100 N. Senate Avenue

P. O. Box 7060

Indianapolis, IN 46207-7060

17. In the event that the civil penalty required by Order paragraph 13 is not paid within 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.

18 This Agreed Order shall apply to and be binding upon the Respondent, its successors and assigns. The 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 the Respondent shall in any way alter its status or responsibilities under this Agreed Order.

19. 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.

20. The 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.

21. This Agreed Order is not and shall not be interpreted to be a Permit, or a modification of an existing Permit, nor shall it in any way relieve Respondent of its obligation to comply with the applicable requirements of federal or state law or regulation.

22. This Agreed Order shall remain in effect until Respondent complies with the terms of Order paragraphs No. 3 through 17.

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TECHNICAL RECOMMENDATION: RESPONDENT:

Department of Environmental Management ESSROC Cement Corp.

By: _________________________ By: _________________________

Mark W. Stanifer

Chief, Water Enforcement Section Printed:

Office of Enforcement

Title: _

Date: ________________________ Date: ________________________

COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:

Department of Environmental Management

By: _________________________ By: ________________________

Jay Rodia

Office of Legal Counsel

Date: _______________________ Date: ______________________

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _____ DAY OF ____________________, 200__.

For the Commissioner:

__Signed 9/13/04______

Felicia A. Robinson

Deputy Commissioner

for Legal Affairs