STATE OF INDIANA

COUNTY OF MARION

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BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v.

ROLL COATER, INC.,

Respondent.

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Case No. 2008-17588-W

 

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 Roll Coater, Inc., (“Respondent”), which owns and operates a Class C industrial wastewater treatment facility  (“WWTF”), located at 858 East Hupp Road, Kingsbury, LaPorte County, Indiana (the “Site”), and is authorized to discharge wastewater treated in accordance with the terms and conditions of National Pollutant Discharge Elimination System (“NPDES”) Permit No. IN0038172 from its WWTF into receiving waters named Travis Ditch.

 

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 via Certified Mail to:

 

Anthony Kunkler, Environmental Manager

Roll Coater, Inc.

8440 Woodfield Crossing, Building 2 Fifth Floor

Indianapolis, IN 46240

 

5.                  During an investigation conducted by a representative of IDEM, the following violations were found:

 

Pursuant to 327 Indiana Administrative Code (“IAC”) 5-2-8(1) and Part II.A.1 of the Permit, the permittee shall comply with all terms and conditions of its Permit.

 

Pursuant to Part I.C.1 of the NPDES Permit, Permittee must conduct biomonitoring (Whole Effluent Toxicity Testing) to monitor the toxicity of the discharge from Outfall 001. If the toxicity is demonstrated to be acute, as defined by Part I.C.1(e) of the NPDES Permit, then Permittee shall reduce toxicity to acceptable levels as soon as possible, but no later than three years after the date of determination of toxicity, Pursuant to Part I.C.2(d) of the NPDES Permit.

 

Respondent failed the effluent toxicity demonstration on January 3, 2005.  Respondent began a Toxicity Reduction Evaluation (“TRE”) however, failed to eliminate toxicity within three (3) year compliance period, ending January 3, 2008, in violation of 327 IAC 5-2-8(1) and Part I.C.2(d) of the NPDES Permit.

 

6.                  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 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 rules and/or permit conditions contained in its NPDES permit that currently is in effect and any modifications thereto.

 

3.                  Within 30 days following the effective date of the modification of Respondent’s current NPDES permit establishing new acute and chronic toxicity thresholds, Respondent shall perform toxicity testing pursuant to the requirements in its modified NPDES permit.  If the results of the toxicity testing identify acute or chronic toxicity, a confirmation test shall be conducted within two weeks of receiving the initial toxicity test results.  If the results of the initial or confirmation toxicity testing do not demonstrate toxicity under the terms of the modified NPDES, no further action by Respondent is required concerning the violation listed in paragraph 5 of the above Findings of Fact, and Respondent shall comply with the toxicity testing requirements as described in its NPDES permit that is in effect.

 

4.                  If the results of the confirmation toxicity testing demonstrate toxicity under the terms of the modified NPDES permit, then, pursuant to Permit Condition I.E.2.a, within 90 days of the receipt those results, Respondent shall develop and submit to IDEM for approval a Toxicity Reduction Evaluation (TRE) Plan which identifies actions and milestone dates that Respondent will take to achieve and maintain compliance with its NPDES Permit.

 

5.                  Respondent shall submit TRE progress reports every 90 days to the Compliance Evaluation Section of the Office of Water Quality beginning 90 days after initiation of the TRE.  During the performance of the TRE, the whole effluent toxicity testing requirement contained in the NPDES permit is suspended as allowed by Permit Condition I.E.1.f(3).  However, Respondent is allowed to perform any testing it deems necessary to determine, among other things, its progress toward completing the TRE.  Immediately following completion of the TRE, Respondent shall begin the Performance Period. The Performance Period will consist of the Post-TRE Biomonitoring requirements and will terminate upon the completion of the Compliance Demonstration as discussed in paragraph 6 below.  During the Performance Period, Respondent shall be subject to stipulated penalties, as specified below, for violations of the effluent limitations or requirements of the Permit as related to toxicity.  In the event that Respondent fails to make the Compliance Demonstration for whole effluent toxicity, Respondent shall, within sixty days of becoming aware that the Compliance Demonstration cannot be achieved, develop and submit to IDEM, for approval, an “Additional Action Plan” which identifies the additional actions that Respondent will take to achieve and maintain compliance with the toxicity effluent limitations and above requirements contained in its NPDES Permit.  The Additional Action Plan, if required, shall include an implementation and completion schedule, including specific milestone dates.  During the performance of the Additional Action Plan, the whole effluent toxicity testing requirement contained in the NPDES permit is suspended as allowed by Permit Condition I.E.1.f(3).  However, Respondent is allowed to perform any testing it deems necessary to determine, among other things, its progress toward completing the Additional Action Plan.  If the Additional Action Plan is required, the Performance Period shall terminate and Respondent shall not be liable for stipulated penalties during its performance of the Additional Action Plan.

 

6.                  After completion of the TRE, Respondent shall conduct Post-TRE Biomonitoring.  Post-TRE Biomonitoring requires Respondent to conduct monthly toxicity test with 2 or more species for a period of three months.  Should three consecutive monthly tests demonstrate no toxicity (i.e., the “Compliance Demonstration”) no further action by Respondent is required concerning the violation listed in paragraph 5 of the above Findings of Fact and Respondent shall comply with the toxicity testing requirements as described in its NPDES permit that is in effect at the time,

 

7.                  The plans required by Paragraphs 4 and 5 above are subject to IDEM approval. In the event IDEM determines that any plan submitted by Respondent is deficient or otherwise unacceptable, Respondent shall revise and resubmit the plan to IDEM in accordance with IDEM’s notice. After three submissions of such plan by Respondent, IDEM may modify and approve any such plan.  If IDEM elects to modify and approve a plan, it shall notify Respondent in writing of such election and provide such modified and approved plan to Respondent. The decision by IDEM to modify and approve a plan is an Agency action of the Department of Environmental Management pursuant to IC-4-21.5-7-5 and is subject to administrative review by the Office of Environmental Adjudication under IC 4-21.5.

 

Respondent, upon receipt of written notification from IDEM, shall immediately implement the approved plan and adhere to the milestone dates therein.  The approved TRE Plan and Additional Action Plan shall be incorporated into the Agreed Order and shall be deemed an enforceable part thereof.  Failure by Respondent to submit any plan by the specified date or to meet any of the milestones in the approved plan will subject Respondent to stipulated penalties as described below.  Failure to achieve compliance at the conclusion of work under an Additional Action Plan will subject Respondent to additional enforcement action.

 

8.                  Respondent shall notify IDEM, in writing, within 10 days of completion of each action or milestone contained in any plan approved by IDEM pursuant to this Agreed Order.  The notification shall include a description of the action completed and the date it was completed.

 

9.                  All submittals required by this Agreed Order to be submitted to the Compliance Evaluation Sections of the Office of Water Quality, unless Respondent is notified otherwise in writing by IDEM, shall be sent to:

 

Indiana Department of Environmental Management

Office of Water Quality

Compliance Evaluation Section – Mail Code 65-40

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

10.             All submittals required by this Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall be sent to:

 

Sue Bock, Enforcement Case Manager

Water Enforcement Section – Mail Code 60-02

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

 

11.             Respondent is assessed a civil penalty of Nine Thousand Dollars ($9,000).  Said penalty amount shall be due and payable to the Environmental Management Special Fund within forty-five (45) days of the Effective Date.  In the event that the civil penalty is not paid within forty-five (45) days of the Effective Date, 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.

 

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

 

Paragraph

Violation

Stipulated Penalty

4

Failure to submit TRE within the required time period.

$500 per week late, or part thereof.

5

Failure to comply with the

effluent limitations and requirements of the permit during the Performance Period.

$1,000 per violation event.

6

Failure to conduct Post-TRE Biomonitoring

$1,000 per violation event.

7

Failure to revise and resubmit any plan required pursuant to this Agreed Order, as required.

 

$500 per week late, or part thereof.

 

7

Failure to implement the approved Plan or to meet the approved milestone dates.

 

$750 per week late, or part thereof

8

Failure to notify IDEM, in writing, within 10 days of completion of each action contained in the approved plan.

$500 per week late, or part thereof.

 

13.             Stipulated penalties shall be due and payable within thirty (30) 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 non-monetary relief against Respondent for violation of this Agreed Order.  In lieu of any of the stipulated penalties set out above, 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.

 

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:

 

Indiana Department of Environmental Management

Cashier – Mail Code 50-10C

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

15.             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.

 

16.             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.

 

17.             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.

 

18.             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.

 

19.             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.

 

20.             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 and/or the Agreed Order.

 

21.             Nothing in this Agreed Order shall prevent IDEM from communicating with the 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.

 

22.             This Agreed Order shall remain in effect until Respondent has complied with the terms and conditions of Order Paragraph Nos. 3 through 14 and IDEM issues a Resolution of Case letter.

 

TECHNICAL RECOMMENDATION:

 

RESPONDENT:

Department of Environmental Management

 

Roll Coater, Inc.

 

 

 

By:

 

 

By:

 

 

Mark W. Stanifer, Chief

 

Printed:

 

 

Water Enforcement Section

 

Title:

 

 

Office of Enforcement

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

 

 

 

COUNSEL FOR COMPLAINANT:

 

COUNSEL FOR RESPONDENT:

Department of Environmental Management

 

 

 

 

 

By:

 

 

By:

 

 

 

 

 

 

 

Office of Legal Counsel

 

 

 

Date:

Deputy Attorney General

 

Date:

 

 

 

 

 

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

 

DAY OF

 

, 200

 

.

 

 

For the Commissioner:

 

 

 

Signed on January 27, 2009

 

Bruno Pigott

 

Assistant Commissioner

 

Office of Water Quality