STATE OF INDIANA		)	SS:	BEFORE THE INDIANA DEPARTMENT OF
		)
COUNTY OF MARION		)		ENVIRONMENTAL MANAGEMENT

COMMISSIONER OF THE DEPARTMENT					)
OF ENVIRONMENTAL MANAGEMENT,					)
					)
Complainant,					)
					)
	v.				)	Case Nos. 2011-20001-H
					)	2012-20834-S
					)
lehigh cement company LLC,					)
					)
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 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 Lehigh Cement Company LLC (“Respondent”), which owns/operates the company with United States Environmental Protection Agency (EPA) ID No. IND006054183 and Solid Waste Facility Permit No. 47-05, located at 180 N. Meridian Road, in Mitchell, Lawrence 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) via Certified Mail to:

James Kitzmiller, President & CEO	Corporation Service Company, Registered Agent
Lehigh Cement Company, LLC	251 E. Ohio Street, Suite 500
8505 Freeport Parkway	Indianapolis, Indiana 46204
Irving, Texas 75063

Scott Quaas, Environmental Manager
Lehigh Cement Company, LLC
180 North Meridian Road
Mitchell, Indiana 47446

5. Respondent waives issuance of a Notice of Violation and to the settlement period of sixty (60) days as provided for by IC 13-30-3-3 for violations noted during the March 20, 2012 inspection.

6. Respondent was granted approval by IDEM for Solid Waste Facility Permit No. 47-05 for a Restricted Waste Type I Site on June 26, 2007.

7. During an investigation including an inspection on March 9, 2011, 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, except for that water resulting from precipitation directly upon the working face.

As noted during the inspection, Respondent deposited solid waste directly into standing liquid on the landfill in Cell No. 2.

b. 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.

As noted during the inspection, Respondent did not manage or control leachate which was migrating from the active cells to unlined future Cell No. 3. The barrier berm between Cell Two and Cell Three had been breached. Collected rainwater with leachate from Cell One and Cell Two was flowing across the berm into the standing water in the unlined Cell Three.

On September 13, 2011, a representative of IDEM inspected Respondent’s facility and noted the berm between Cells Two and Three had been widened, increased in height and was compacted. Additionally, the fill area was graded to keep storm water from overflowing.

c. 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.

d. As noted in the inspection, Respondent failed to operate the leachate collection system as described in the Permit. Respondent’s cell two leachate collection pump was not in operation.

On September 13, 2011, a representative of IDEM inspected Respondent’s facility and noted that the Cell Two leachate pump was back on and functioning.

8. During an investigation, including an inspection on March 20, 2012, conducted by a representative of IDEM, the following violations were found:

a. Pursuant to 329 IAC 10-27-2 and Permit Condition D3, permanent visible boundary markers which delineate the approved facility and solid waste boundaries shall be maintained for the active, closure and post-closure life of the facility.

During the March 20, 2012 inspection, the solid waste boundary markers were not present Lehigh staff installed some of the boundary markers during the inspection; however, not all of the perimeter boundaries delineating the solid waste boundaries were marked prior to the end of the inspection. In addition, the site is using painted wooden stakes that are two feet in height.

Lehigh conducted a survey of the RWS in May, 2012, and temporary boundary markers were installed. Installation of permanent metal boundary markers at the nine corner coordinates of the solid waste boundary survey was completed in June, 2012.

b. Pursuant to 329 IAC 10-13-4(c) and Permit Condition D4, waste disposal must be limited to the area delineated by the solid waste boundary line as shown on the Final Grade Plan, Sheet 1 of 1 entitled “2004 Permit Renewal” dated March 2004. The permittee must construct and operate a solid waste land disposal facility in accordance with the permit.

Waste was documented outside of the permitted solid waste boundary along the western perimeter of Cell 1 & 2.

On March 27, 2012, Lehigh conducted an X-Ray Fluorescence (XRF) analysis of the material found by IDEM along the western perimeter of Cell 1 and 2. The material was found not to be enriched in alkalis or volatiles as cement kiln dust would be, but was found to be consistent with limestone, which was utilized in the perimeter ditch for stabilization. Respondent removed the material and placed it in the landfill which was verified at the June 12, 2012 inspection.

c. Pursuant to IC 13-30-2-1(4), no person shall deposit or cause or allow the deposit of any contaminants or solid waste upon the land, except through the use of sanitary landfills, incineration, composting, garbage grinding, or another method acceptable to the solid waste management board.

Respondent deposited or caused and/or allowed the deposit of solid waste in a method which has not been determined by the Solid Waste Management Board to be acceptable. During the March 20, 2012, inspection, staff noted solid waste outside of the permitted solid waste boundary along the western perimeter of Cell 1 and Cell 2.

d. Pursuant to Permit Condition D5 as modified by Stay of Effectiveness dated September 18, 2007 “Stay Agreement”, although Lehigh is not required to maintain a waste classification for CKD disposal, with each renewal application for FP 47-05, Lehigh is required to conduct sampling and analysis for TCLP metals as described in 329 IAC 10-9-4 and submit the results.

IDEM did not receive TCLP results with the most recent renewal application packet and according to IDEM records, the last TCLP results were received in 2004.

Lehigh submitted its TCLP analysis to IDEM on May 8, 2012. Lehigh has not received a request for additional information from IDEM.

e. Pursuant to Permit Condition D7, surface water must be diverted from the active fill area to minimize surface water contact with the waste and interference with the daily operation.

During the March 20, 2012, inspection, surface water was not diverted from the solid waste fill areas in all areas. There was a portion of the landfill where surface water from the landfill access road is conveyed into the active fill area due to grading of the access road and lack of berm and inner ditch preventing the water from entering the fill areas.

Lehigh reconstructed the perimeter berm in the southeast corner to assure surface water is diverted from the fill areas and provided a photograph of the same to IDEM on June 25, 2012.

f. Pursuant to Permit Condition A4 and D14, the permittee shall at all times properly manage, operate, and maintain the new RWS Type I facility and systems of treatment and control.

The permittee must provide adequate leachate storage in accordance with the approved facility design plans.

During the March 20, 2012, inspection, the facility was not maintaining the leachate collection system. The leachate level within the west leachate collection manhole was too high as indicated by the position of the float. The pump within the west leachate collection manhole was shut down. The leachate collection pond appeared to have leachate levels near or above the two feet of free board level on the pond. The float which indicates the pond needs to be relieved was floating at the time of the inspection. Since the float was floating, the volume of leachate in the pond was above the allotted volume for the pond to accept additional leachate. The leachate collection system and sump areas located within the waste disposal cell are not considered adequate leachate storage.

Lehigh has installed a leachate basin high level alert float and strobe. Lehigh also supplemented its leachate collection system by adding a high level alarm and alert strobe to the collection system manholes to provide an alert when the pumps are not running.

g. Pursuant to 329 IAC 10-28-14(c), restricted waste sites Type I and Type II and non-municipal solid waste landfills must be graded to promote surface water drainage and to prevent the ponding of water on previously filled areas.

During the March 20, 2012, inspection, staff noted that water had accumulated on the previously filled areas (Cell 1 & 2). Water had accumulated along the northern border of Cell 1 & 2, putting pressure on the berm.

h. Pursuant to 329 IAC 10-28-16 and Permit Condition D12, any discharge or disposal of collected leachate must be in accordance with applicable local, state and federal laws and rules. The permittee shall not cause a discharge of pollutants into waters of the United States.

During the March 20, 2012, inspection, staff observed failure in the berm constructed to separate the active portion of the landfill (Cell 1 & 2) from the future cell (Cell 3) and to contain surface leachate from migrating off-site. Leachate from the landfill was no longer contained within the leachate containment system and was draining into Cell 3, mixing with the accumulated storm water in Cell 3. Cell 3 is not lined and discharges can infiltrate to the groundwater.

Lehigh made repairs to the berm and submitted photos to IDEM on May 23, 2012. Additional repairs involving compacting clay, seeding, and covering it with straw mats was conducted and a photo of the same as submitted to IDEM on July 25, 2012.

i. Pursuant to 329 IAC 10-25-1(4), the solid waste boundary must be prohibited from within areas of karst topography, without provisions to collect and contain all of the leachate generated, and without a demonstration that the integrity of the landfill will not be damaged by subsidence.

j. Pursuant to 329 IAC 10-28-15(b), any surface movement of leachate past a point fifty (50) feet outside of the solid waste boundary is prohibited except as specified in the facility permit.

During the March 20, 2012, inspection, leachate was migrating over fifty (50) feet from the solid waste boundary via surface flow within Cell 3.

k. Pursuant to Permit Condition I1a, the permittee must report to IDEM annually the amount of cement kiln dust that is mined. The report must be submitted on or before January 30^th of the year following the reporting period.

IDEM records indicate the annual reports documenting the amount of CKD that is mined from the interim disposal site have not been received by IDEM.

Lehigh submitted its 2008-2011 annual mining reports to IDEM on October 4, 2012. IDEM is currently reviewing these reports.

l. Pursuant to Permit Condition I2b, facilities must be properly graded and sloped and must use dikes, berms, drainage ditches, or swales to minimize the impact of surface water run-off and prevent surface water pollution. Any liquids that have come into contact with waste must be treated as leachate and properly disposed of.

During the March 20, 2012, inspection, staff documented leachate seeps coming from the side slopes along the western boundary of the interim disposal Site. Liquids that come in contact with the waste are not being treated as leachate, nor are they being disposed of properly. Liquids that came into contact with the waste were being discharged via seeps and run-off from the interim disposal Site, entering an unnamed tributary to Rock Lick Branch.

Respondent contends that it has installed a collection sump/pump and geomembrane liner with a pea rock drainage layer covered with geotextile mat and compacted clay at the site of leachate seep to contain the leachate. This is subject to field verification by IDEM staff.

m. Pursuant to Permit Conditions I3, I4, I5, I6, I7, I8, the permittee must submit a closure plan and post-closure plan for the interim disposal facility, within one hundred twenty (120) days of the cessation of the mining of waste for approval by IDEM. The closure plan and post-closure plan must meet the conditions set forth in permit condition I4, I5, I6, I7 and I8.

Lehigh submitted its Interim Disposal Site Closure Plan to IDEM on October 4, 2012.

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 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 ensure implementation of its SOP or other plans in order to prevent future berm failure.

4. Respondent shall submit an insignificant modification to its permit within thirty (30) days of the Effective Date. Respondent shall within ninety (90) days of receipt of the approval letter, install a minimum of two (2) vertical drains (chimney drains) in its RWS to allow for better leachate flow into leachate collection system.

5. Within sixty (60) days of the Effective Date, Respondent shall submit an operational plan or SOP which outlines procedures to ensure adequate capacity and operation of the leachate collection system.

6. 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.

7. Respondent shall comply with 329 IAC 10-28-20 and Permit Conditions A3, A4, D1 and D14. Specifically, Respondent shall operate the leachate collection system as described in the Permit.

8. Respondent shall comply with Permit Condition D14. Specifically, Respondent shall provide adequate leachate storage in accordance with the approved facility design plans. Respondent shall maintain the level of leachate within the leachate collection manholes within one (1) foot of invert elevation of the leachate collection pipes.

9. Respondent shall comply with 329 IAC 10-28-15(b). Specifically, Respondent shall prevent leachate migration beyond fifty (50) feet of solid waste boundary.

10. Respondent shall within sixty (60) days of the Effective Date, submit an investigation plan to determine if leachate is impacting groundwater leaving the interim fill Site to IDEM for review and approval.

11. Within twenty (20) days of receiving notice from IDEM of approval of Respondent’s investigation plan, Respondent shall implement the approved plan in accordance with the time frames contained therein.

12. Within thirty (30) days of completing the investigation conducted in accordance with the approved plan, Respondent shall submit the results to IDEM for review.

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

Sherri Bass, Enforcement Case Manager

Office of Land Quality – Mail Code 60-02L

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

14. Respondent is assessed and agrees to pay a civil penalty of Seventeen Thousand Six Hundred and Twenty Five Dollars ($17,625). Said penalty amount shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the Effective Date, the 30^th day being the “Due Date”.

15. 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	Penalty
Order Paragraph 4	$500 per week late
Order Paragraph 5	$500 per week late
Order Paragraph 6	$500 per week late
Order Paragraph 7	$500 per week late
Order Paragraph 8	$500 per week late

16. Stipulated penalties shall be due and payable no later than the 30^th day after Respondent receives written notice that Complainant has determined a stipulated penalty is due; the 30^th day being the “Due Date”. Complainant may notify Respondent at any time that a stipulated penalty is due. Failure to notify Respondent in writing in a timely manner of stipulated penalty assessment shall not waive Complainant’s right to collect such stipulated penalty or preclude Complainant from seeking additional relief against Respondent for a violation of this Agreed Order. Neither assessment nor payment of stipulated penalties shall preclude Complainant from seeking additional relief against Respondent for a violation of this Agreed Order; such additional relief includes any remedies or sanctions available pursuant to Indiana law, including, but not limited to, civil penalties pursuant to IC 13-30-4.

17. 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

18. 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 interest on the unpaid balance at the rate established by IC 24-4.6-1. The interest shall be computed as having accrued from the Due Date until the date that Respondent pays any unpaid balance. Such interest shall be payable to the Environmental Management Special Fund, and shall be payable to IDEM in the manner specified in Paragraph 17, above.

19. 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.

20. 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 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.

21. 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.

22. 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.

23. 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.

24. 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.

25. 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.

26. 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.

27. This Agreed Order shall remain in effect until Respondent complies with the terms of Order Paragraphs 4, 5, 10, 11, 12, 14 and 15 of the Order if stipulated penalties are assessed.

TECHNICAL RECOMMENDATION:				RESPONDENT:
Department of Environmental Management

By: _________________________				By: _________________________
	Nancy Johnston, Section Chief
	Enforcement Section			Printed: ______________________
Office of Land Quality
				Title: ________________________

Date: __________________				Date: _______________________




APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS		_______	DAY OF	____________________,	20__.

				For the Commissioner:

				Signed November 20, 2012_
				Bruce H Palin
				Assistant Commissioner
				Office of Land Quality