STATE OF
INDIANA |
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BEFORE THE
INDIANA DEPARTMENT OF |
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ENVIRONMENTAL
MANAGEMENT |
COUNTY OF
MARION |
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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 No.
2012-21013-W |
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lehigh cement company llc, |
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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 Indiana Code (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 IC
13-13-1-1.
2. Respondent
is Lehigh Cement Company LLC (Respondent), which owns and operates the Lehigh
Cement Company cement manufacturing facility, and its Class A-SO industrial
wastewater treatment plant (WWTP), located at 180 North Meridian Road,
Mitchell, Lawrence County, Indiana (the Site).
3. Respondent
is authorized by its National Pollutant Discharge Elimination System (NPDES)
Permit Number IN 0001775 (Permit) to discharge in accordance with the terms and
conditions of the Permit into receiving waters consisting of Rock Lick
Creek. The Permit includes authorization
to discharge non-contact cooling water and storm water from Outfall 001 and
storm water from Outfalls 002 and 007, as well as discharges from other
permitted outfalls.
4. IDEM
has jurisdiction over the parties and the subject matter of this action
pursuant to IC 13-30-3.
5. Pursuant
to IC 13-30-3-3, IDEM issued a Notice of Violation (NOV) on October 19, 2012, via
Certified Mail to Lehigh Cement Company, LLC.
6. Pursuant
to 327 IAC 5-2-8(1) and Part II.A.1 of the Permit, Respondent is required to
comply with all terms and conditions of its 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 of the Permit, Respondent is required to comply with the effluent
limitations contained in the Permit that are applicable to the discharges from
Outfall 001, Outfall 002, and Outfall 007.
Pursuant
to Part I.C.4 of the Permit, Respondent is required to use the analytical and
sampling methods that conform to the current version of 40 CFR 136.
IDEM records, including Discharge Monitoring Reports (DMRs)
submitted by Respondent to IDEM for the period from January 1, 2011 through March
30, 2012, indicate that Respondent failed to comply with effluent limitations contained
in the Permit and failed to use the analytical and sampling methods that
conform to the current version of 40 CFR 136, in violation of 327 IAC 5-2-8(1), Part II.A.1 of the
Permit, and Part I.A of the Permit and/or Part I.C.4 of the Permit as follows:
A. Respondent reported a monthly average total recoverable
cadmium concentration of <.005 mg/L for both November and December 2011 for its
discharge from Outfall 001. The monthly
average total recoverable cadmium concentration permit limit for the discharge
from Outfall 001 is 0.0027 mg/L.
Lehigh’s contract lab mistakenly did not run the samples collected
by Lehigh to a low enough detection limit and the results were reported to
IDEM. Lehigh has not detected a
violation of its monthly average total recoverable cadmium limit since this lab
error occurred.
B. Respondent reported a monthly average total fluoride
concentration for its discharge from Outfall 001 that exceeded its permit limit
during June 2011.
Lehigh did not have any concentrations near the monthly average
fluoride concentration limit in the months leading up to the June 2011 sampling
event and Lehigh has not had any concentrations near the limit since the June
2011 sampling event. All sample results
from July 2011 through December 2012 have been well under the 2.2 mg/l monthly
average limit, with the highest monthly average value being 0.172 mg/l. Therefore, Lehigh believes the 2.5 mg/l June
2011 sample result is an outlier. Lehigh
has submitted a revised DMR and MMR for June 2011 which correctly identifies
the violation.
C. Respondent reported daily maximum total recoverable iron
concentrations for its discharge from Outfall 001 that exceeded its permit
limit during April 2011 and March 2012.
On August 28, 2012, IDEM issued Lehigh’s NPDES Renewal Permit
which removed the wet weather daily maximum total recoverable iron
concentration limit for Outfall 001.
D. Respondent reported monthly average total recoverable iron
concentrations for its discharge from Outfall 001 that exceeded its permit
limit during April 2011, June 2011, November 2011 and March 2012.
Lehigh has submitted revised DMRs and MMRs for June and November 2011
which correctly identify the violations.
On August 28, 2012, IDEM issued Lehigh’s NPDES Renewal Permit which
removed the wet weather monthly average total recoverable iron concentration
limit for Outfall 001.
E. Respondent reported daily maximum pH concentrations for its
discharge from Outfall 001 that exceeded its permit limit during April and June
2011.
Lehigh has reported compliant daily maximum pH results for Outfall
001 for the last 18 months (since July 2011).
F. Respondent reported a monthly average total recoverable
selenium concentration of <0.02 mg/L for November 2011 for its discharge
from Outfall 001. The monthly average
total recoverable selenium permit limit for the discharge from Outfall 001 is
0.017 mg/L.
Lehigh mistakenly reported the wrong selenium sample results in
its November 2011 DMR and MMR for Outfall 001.
Lehigh discovered the mistake after reviewing the lab’s sample results
following issuance of the NOV. Lehigh
has submitted a revised DMR and MMR for November 2011 which reports corrected
daily maximum and monthly average selenium concentrations of <0.0005. Lehigh has reported monthly average total
recoverable selenium concentration results under its limit since this error
occurred in November 2011.
G. Respondent reported a daily maximum total recoverable silver
concentration of <.02 mg/L for November 2011 for its discharge from Outfall
001. The daily maximum total recoverable
silver concentration permit limit for discharge from Outfall 001 is 0.0053
mg/L.
Lehigh mistakenly reported the wrong silver sample results in its
November 2011 DMR and MMR for Outfall 001.
Lehigh discovered the mistake after reviewing the lab’s sample results
following issuance of the NOV. Lehigh
has submitted a revised DMR and MMR for November 2011 which reports a corrected
daily maximum silver concentration of <0.001. Lehigh has reported daily maximum total
recoverable silver concentration results under its daily maximum total since
this error occurred in November 2011.
H. Respondent reported a monthly average total recoverable
silver concentration of <.02 mg/L during November 2011 for its discharge
from Outfall 001. The monthly average
total recoverable silver concentration permit limit for discharge from Outfall
001 is 0.0023 mg/L.
Lehigh mistakenly reported the wrong silver sample results in its
November 2011 DMR and MMR for Outfall 001.
Lehigh discovered the mistake after reviewing the lab’s sample results
following issuance of the NOV. Lehigh
has submitted a revised DMR and MMR for November 2011 which reports a corrected
monthly average silver concentration of <0.001. Lehigh has reported compliant monthly average
total recoverable silver concentrations since this error occurred in November
2011.
I. Respondent reported exceedances
of its daily maximum temperature permit limits for its discharge from Outfall
001 during January, February, March, May, and December 2011, and January,
February, and March 2012.
Lehigh has submitted
revised DMRs and MMRs to correctly identify these exceedances of its daily maximum temperature limit. Lehigh has moved the sampling location for
temperature approximately 350 feet from its prior location to just prior to the
discharge into Rock Lick Creek.
Additionally, Lehigh will utilize the mixed river temperature that takes
into account the mixing zone as allowed by its Permit.
J. Respondent reported exceedances of
its monthly average temperature permit limits for its discharge from Outfall
001 during January, February, March, May, and December 2011, and January,
February, and March 2012.
Lehigh has submitted revised DMRs and MMRs to correctly identify
these exceedances of its daily maximum temperature
limit. Lehigh has moved the sampling
location for temperature approximately 350 feet from its prior location to just
prior to the discharge into Rock Lick Creek.
Additionally, Lehigh will utilize the mixed river temperature that takes
into account the mixing zone as allowed by its Permit.
K. Respondent reported daily maximum pH concentrations for its
discharge from Outfall 002 that exceeded its permit limit during April, October
and November 2011, and March 2012.
Lehigh has submitted a revised DMR and MMR for April and October
2011 which correctly identifies the daily maximum pH violations. On August 28, 2012 IDEM issued Lehigh’s NPDES
Renewal Permit which removed the wet weather daily maximum pH concentration
limit for Outfall 002.
L. Respondent reported daily maximum total suspended solids
concentrations for its discharge from Outfall 007 that exceeded its permit
limit during April and June 2011, and March 2012.
Lehigh has re-located its sampling
point for Outfall 007 to just behind the Outfall 007 culvert outlet as directed
by IDEM’s Office of Water Quality.
7. Pursuant to Part I.C of the Permit, Respondent is required
to submit federal and state discharge monitoring reports to IDEM containing
results obtained during the previous month which shall be postmarked no later
than the 28th day of the month following each completed monitoring
period.
A record review by IDEM staff has indicated that IDEM has not
received a complete Discharge Monitoring Report (DMR) from Respondent for the
month of October 2011.
Respondent’s failure to submit a complete DMR for the month of
October 2011 is in violation of Part I.C of the Permit, 327 IAC 5-2-8(1), and Part II.A.1 of
the Permit.
Lehigh submitted additional information to IDEM regarding the
October 2011 DMR on March 15, 2012, November 19, 2012, and on January 25, 2013.
8. Pursuant to Part II.A.5 of the Permit, Respondent is
required to furnish to the Commissioner, within reasonable time, any
information which the Commissioner may request to determine compliance with the
Permit. Pursuant to Part II.A.5 of the
Permit and 327 IAC 5-1-3, Respondent is required to furnish to the Commissioner
any reports or data necessary to carry out the provisions of 327 IAC 5 in such
a manner as the Commissioner may reasonably prescribe.
On May 4, 2012, IDEM sent a letter to Respondent in which IDEM
notified Respondent of Respondent’s violations of the Permit outlined in
Paragraphs 6 and 7 above, and requested that Respondent submit a compliance
plan within 30 days of Respondent’s receipt of the letter, describing any
corrective measures which will be taken to assure compliance in the future. IDEM did not receive a response from
Respondent to this request for information.
On June 12, 2012, IDEM again sent the letter to Respondent, this
time by certified mail, in which IDEM notified Respondent of the Respondent’s
violations of the Permit outlined in Paragraphs 6 and 7 above, and again
requested that Respondent submit a compliance plan within 30 days of
Respondent’s receipt of the letter, describing any corrective measures which
will be taken to assure compliance in the future. Records indicate that Respondent received
this second request for information on June 13, 2012. IDEM did not receive a response from
Respondent to this second request for information.
Respondent’s failure to furnish to the Commissioner the
information that IDEM requested to determine compliance with the Permit, and
Respondent’s failure to furnish to IDEM the reports or data necessary to carry
out the provisions of 327 IAC 5 in the manner as IDEM prescribed, is in
violation of Part II.A.5 of the Permit 327 IAC 5-1-3, 327 IAC 5-2-8(1), and Part II.A.1 of
the Permit.
Lehigh contends that it never received the May 4, 2012
letter. Lehigh contacted an IDEM
Enforcement Case Manager on July 26, 2012 to discuss the allegations included
in the Violation Letter and was instructed to contact Office of Water Quality,
Compliance Section staff. Lehigh has
indicated that it made repeated attempts to contact Compliance Staff, but
failed, so Lehigh drafted a written response to the Violation Letter on August
24, 2012. Lehigh mailed its response to
IDEM along with its August 2012 DMR and MMR on August 28, 2012. IDEM contends that it did not receive
Lehigh’s response to the Violation Letter.
Lehigh provided another copy to IDEM during its settlement conference on
November 19, 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 adopted by
Complainant or Complainant’s delegate (as evidenced by signature), and the
adopted Agreed Order has been received by Respondent. This Agreed Order shall have no force or effect
until the Effective Date.
2. Respondent
shall comply with the rules and permit conditions listed in the findings above
at issue, including ensuring that Respondent
furnishes to IDEM any information which the Commissioner may request to
determine compliance with the Permit, and that all reports or data necessary to
carry out the provisions of 327 IAC 5 are provided to IDEM in the manner as
prescribed by IDEM, as required by Part II.A.5 of the Permit.
3. Beginning
of the Effective Date, Respondent shall ensure that monthly monitoring reports are
submitted to IDEM containing results obtained during the previous month
postmarked no later than the 28th day of the month following each completed
monitoring period, as required by 327 IAC 5-2-15 and Part I.B.3 of the Permit.
4. Lehigh shall: (1) construct a pool area
upslope of the Outfall 007 culvert pipe inlet; (2) a riprap horseshoe control
structure with filter stone in front of the Outfall 007 culvert; and (3) a
splash pad at the outlet to the culvert pipe. Lehigh shall complete this work by June 30,
2013.
5. All
submittals required by this Agreed Order, unless Respondent is notified
otherwise in writing by IDEM, shall be sent to:
Terry
Ressler, Enforcement Case Manager |
Indiana
Department of Environmental Management |
Surface
Water, Operations & Enforcement Branch |
Office
of Water Quality – Mail Code 60-02W |
100
North Senate Avenue, Room 1255 |
Indianapolis,
IN 46204-2251 |
6. Respondent is assessed and agrees to
pay a civil penalty of Six Thousand Seven Hundred Dollars ($6,700).
Said penalty amount shall be due and payable to the Environmental
Management Special Fund within 30 days of the Effective Date; the 30th
day being a “Due Date.”
7. In
the event the terms and conditions of the following paragraphs are violated, IDEM
may assess and Respondent shall pay the corresponding stipulated penalty:
Paragraph |
Violation |
Stipulated Penalty |
4 |
Failure to
modify Outfall 007 as described in Paragraph 4. |
$250 per
each week late |
8. Stipulated penalties shall be due and payable no later than the 30th day after
Respondent receives written notice that IDEM has determined a stipulated
penalty is due; the 30th day
being a “Due Date.” IDEM may notify
Respondent at any time that a stipulated penalty is due. Failure to notify Respondent in writing in a
timely manner of a stipulated penalty assessment shall not waive IDEM’s right
to collect such stipulated penalty or preclude IDEM from seeking additional
relief against Respondent for violation of this Agreed Order. Neither assessment nor payment of stipulated penalties
shall preclude IDEM 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.
9. Civil
and stipulated penalties are payable by check to the “Environmental Management
Special Fund.” Checks shall include the
Case Number of this action (Case No. 2012-21013-W) and shall be mailed to:
Indiana
Department of Environmental Management |
Cashier
– Mail Code 50-10C |
100
North Senate Avenue |
Indianapolis,
IN 46204-2251 |
10. 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.
11. 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 and any accrued interest at the rate established by IC 24-4.6-1-102. The interest shall be computed as having
accrued from the Due Date until the date that Respondent pays any unpaid
balance. The interest shall continue to
accrue on the first of each month until the civil penalty and any interest
accrued are paid in full. Such interest
shall be payable to the Environmental Management Special Fund, and shall be
payable to IDEM in the manner specified above.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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.
18. 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.
19. This
Agreed Order shall remain in effect until Respondent has complied with
Paragraphs 4, 6, and 11 of the Order and Paragraphs 7 and 8 of the Order if
stipulated penalties are assessed.
Respondent is required to notify IDEM
in writing, at the address specified in Paragraph 5 above, of the date on which
all of the terms and conditions of this Agreed Order have been met. While the Respondent may be required to
provide updates to IDEM concerning the completion of individual terms and
conditions, Respondent must provide IDEM with a written response identifying
the specific date upon which all terms and conditions have been met that will
be the last date of effectiveness for this Agreed Order.
TECHNICAL
RECOMMENDATION: |
RESPONDENT: |
Department of
Environmental Management |
Lehigh Cement Company
LLC |
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By:
________________________ |
By: ________________________ |
Mary E. Hollingsworth, Branch Chief |
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Surface
Water, Operations and |
Printed:
______________________ |
Enforcement
Branch |
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Office of
Water Quality |
Title:
________________________ |
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Date: ______________________ |
Date:
_______________________ |
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APPROVED
AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT
THIS ______ DAY OF ________________________, 20___. |
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For the
Commissioner: |
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Signed on
May 9, 2013 |
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Bruno
Pigott |
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Assistant
Commissioner |
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Office of
Water Quality |