STATE OF INDIANA

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SS:

BEFORE THE INDIANA DEPARTMENT OF

 

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ENVIRONMENTAL MANAGEMENT

COUNTY OF MARION

)

 

 

 

COMMISSIONER OF THE DEPARTMENT

)

 

OF ENVIRONMENTAL MANAGEMENT,

)

 

)

Complainant,

)

 

)

v.

)

Case No. 2012-21013-W

 

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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 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

 

By: ________________________

By: ________________________

Mary E. Hollingsworth, Branch Chief

 

Surface Water, Operations and

Printed: ______________________

Enforcement Branch

 

Office of Water Quality

Title: ________________________

 

Date: ______________________

Date: _______________________

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS ______ DAY OF ________________________, 20___.

 

 

For the Commissioner:

 

 

 

Signed on May 9, 2013

 

Bruno Pigott

 

Assistant Commissioner

 

Office of Water Quality