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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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v. |
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Case Nos. 2008-18179-H |
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2009-18525-H |
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lehigh cement company, |
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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 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
2.
Respondent
is Lehigh Cement Company (“Respondent”), which owns and operates the company
with United States Environmental Protection Agency (EPA) ID No. IND006054183 and
Solid Waste Facility Permit No. 47-05 and National Pollutant Discharge
Elimination System (NPDES) Permit No. IN0001775, located at
3.
IDEM
has jurisdiction over the parties and the subject matter of this action.
4.
Pursuant
to IC 13-30-3-3, IDEM issued Notices of
Violation (NOVs) via Certified Mail on January 12, 2009 and June 12, 2009 to:
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James
Kitzmiller, President & CEO |
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Scott
Quaas, Environmental Manager |
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Lehigh
Cement Company |
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Lehigh
Cement Company |
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Corporation System, Registered Agent |
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5. IDEM granted Respondent’s Solid
Waste Renewal Facility Permit No. 47-05 for a Restricted Waste Site Type 1 on
June 26, 2007.
6. During
an investigation, including inspections on September 30, 2008 and March 26, 2009 conducted by a representative of IDEM, the following violations
were found:
a. Pursuant
to 329 IAC 10-28-10(a) and Permit Condition D1, solid waste must not be deposited
in standing or ponded water. Respondent
deposited solid waste directly into standing liquid on the landfill in Cell No.
2.
b. Pursuant
to 329 IAC 10-28-10(b) and Permit Conditions A3, A4, D1, D7 and D8, non-municipal
solid waste landfills must divert surface water from the active fill area and must
minimize surface water contact with solid waste. Respondent failed to properly maintain its
sedimentation basin drainage ditches which resulted in surface water contacting
the solid waste landfill.
c. Pursuant
to 329 IAC 10-28-15(a) and Permit Conditions A3, A4, D1, D7 and D8, any leachate
on the surface of the restricted waste site must be immediately managed or controlled
to prevent off-site migration. Respondent
did not manage or control leachate which was migrating from the active cell
into the clean surface water drainage ditch, sediment basin and into the
unlined future Cell No.3.
d. Pursuant
to 329 IAC 10-28-16 and Permit Conditions A4 and D1, any discharge or disposal
of collected leachate must be in accordance with all applicable laws and rules. Respondent allowed collected leachate to be
discharged from the active cell into the clean surface water drainage ditch,
sediment basin and into the unlined future Cell No.3 in violation of applicable
laws and rules.
e. Pursuant
to 329 IAC 10-28-20 and Permit Conditions A3, A4 and D1, leachate collection systems
must be operated in such a manner as to comply with the design standards and plans. Respondent failed to operate the leachate
collection system as described in the Permit.
Respondent’s leachate collection pumps were not functional and the
leachate basin was not being maintained and used to collect leachate.
f. Pursuant to Permit Condition D15, the volume of the leachate
generated shall be submitted to IDEM on an annual basis. Respondent submitted annual leachate reports to
IDEM which indicated the volume of leachate removed from the landfill and not the
volume generated at the Site.
g. Pursuant to Permit Condition D12, Respondent shall not cause
a discharge of pollutants into waters of the
7. Respondent
provided documentation to IDEM on October 7, 2008 that the sediment basin drainage
ditches had been repaired to prevent leachate from going beyond the active
cell.
8. Respondent
has not reported NPDES violations for chlorides, copper, pH or selenium from Outfall
005 since July, 2008.
9. On
July 15, 2009, Respondent collected and sampled storm water from its
sedimentation basin for pH, total suspended solids, oil and grease, arsenic,
cadmium, selenium, silver, chloride, fluoride, sulfate, and copper. All samples were below Respondent’s Outfall
005 NPDES effluent limitations.
10. On
July 17, 2009, Respondent submitted a request to IDEM’s NPDES Section
requesting a modification to allow Respondent to utilize more leachate from its
restricted waste site in its non-contact cooling water system which discharges
to Outfall 001.
11. On
October 1, 2009, representatives of IDEM inspected Respondent’s facility and
noted that Respondent established a berm and storm water conveyances to
redirect storm water away from the east portion of Cells 2 and 3 of the
restricted waste site.
12. Respondent
has repaired and/or replaced leachate collection system components and has made
its leachate collection system and leachate collection basin operable.
13. 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 listed in the findings here
and/or above at issue.
3. Respondent
shall comply with 329 IAC 10-28-10(a) and Permit Condition D1. Specifically, Respondent shall not deposit
solid waste in standing or ponded water except for that water resulting from
precipitation directly upon the working face of the restricted waste site.
4. Respondent
shall comply with Permit Conditions A3, A4, D7 and D8. Specifically, Respondent shall maintain their
sediment basin drainage ditches to prevent surface water from contacting the
restricted waste site.
5. Respondent
shall comply with 329 IAC 10-28-15(a) and Permit Conditions A3, A4, D1, D7 and D8. Specifically, Respondent shall manage or
control leachate on the surface of the restricted waste site to prevent
off-site migration.
6. Respondent
shall comply with 329 IAC 10-28-16 and Permit Conditions A4 and D1.
(a) Specifically,
Respondent shall discharge and/or dispose of 8,400 to 8,500 gallons of the collected
leachate contained in the restricted waste site on each Monday, Tuesday,
Wednesday, Thursday, and Friday occurring between March 16th and
November 14th with the exception of federal holidays (subject to the
force majeure provisions of paragraph 15 which would include but is not limited
to excessive precipitation or other severe weather events) until such time as either:
(1) all
the collected leachate has been removed from the restricted waste site;or
(2) until
IDEM issues a modified NPDES Permit
which removes the restriction on the amount of leachate that can be utilized as
non-contact cooling water, but otherwise retains approval for Respondent to
supplement its non-contact cooling water supply with the leachate.
(b) Upon
the effective date of the above-described NPDES permit modification, Respondent
shall have one-hundred and eighty (180) days (subject to the force majeure
provisions of paragraph 15 which would include but is not limited to excessive
precipitation or other severe weather events) to dispose of the collected
leachate contained in its restricted waste site. “Day” for purpose of this Order paragraph
(6)(b) is defined as week days (Monday through Friday) occurring between March
16th through November 14th.
IDEM will not consider Respondent’s
inability to comply with this paragraph due to a pump malfunction/failure to be
a violation of this Agreed Order as long as Respondent notifies the Enforcement
Case Manager within a reasonable time from discovery of the malfunction/failure
and Respondent remedies the malfunction/failure as soon as practicable.
7. Respondent
shall comply with 329 IAC 10-28-20 and Permit Conditions A3, A4 and D1. Specifically, Respondent shall operate the
leachate collection system as described in the Permit.
8. Respondent
shall comply with Permit Condition D15.
Specifically, Respondent shall continue to submit to IDEM the volume of
the leachate generated that is removed from the restricted waste site and
either sent to a wastewater treatment plant, other leachate disposal facility,
or otherwise reused or disposed of on an annual basis.
9.
Respondent
shall comply with Permit Condition D12.
Specifically, Respondent shall not discharge pollutants into the waters
of the
10. All submittals required by this
Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall
be sent to:
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Sherri
Bass, Enforcement Case Manager |
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Office
of Enforcement – Mail Code 60-02 |
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Indiana
Department of Environmental Management |
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11. Respondent
is assessed a civil penalty of Seven Thousand Dollars ($7,000). 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:
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Paragraph |
Penalty |
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Order # 6 |
$500 per week or part thereof |
13. 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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Cashier
– Mail Code 50-10C |
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14. 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.
15. Force majeure, for purposes of this
Agreed Order, is defined as any event arising from causes totally beyond the
control and without fault of Respondent that delays or prevents the performance
of any obligation under this Agreed Order despite Respondent’s best efforts to
fulfill the obligation. The requirement
that 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 include (1)
changed business or economic conditions; (2) financial inability to complete
the work required by this Agreed Order; or (3) increases in costs to perform
the work.
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 Respondent contends is a force majeure. Such notification shall describe (1) the
anticipated length of the delay; (2) the cause or causes of the delay; (3) the
measures taken or to be taken by Respondent to minimize the delay; and (4) the
timetable by which these measures will be implemented. 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 Respondent from asserting any claim of
force majeure for that event. 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.
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 permits 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 NOVs.
21. Nothing in this Agreed Order
shall prevent IDEM, or anyone acting on its behalf, 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 complies with the terms of
Order Paragraphs 6, 11, and 12. IDEM will
issue a Resolution of Case letter to Respondent thereafter.
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TECHNICAL RECOMMENDATION: |
RESPONDENT: |
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Department of Environmental Management |
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By: _________________________ |
By:
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Nancy Johnston, Section
Chief |
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Enforcement |
Printed: ______________________ |
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Title: ________________________ |
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Date: __________________ |
Date: _______________________ |
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COUNSEL FOR COMPLAINANT: |
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For the Department of Environmental
Management |
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By: ________________________ |
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Deputy Attorney General |
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Date: _______________________ |
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APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF
ENVIRONMENTAL |
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MANAGEMENT
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For the Commissioner: |
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Signed February 23, 2010 |
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Bruce
H Palin |
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Assistant Commissioner |
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Office of Land Quality |
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