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.

giles chemicals, division of

premier magnesia Llc,

Respondent.

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Case No. 2019-25947-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 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.             Giles Chemicals, Division of Premier Magnesia LLC (Respondent), owns and operates the facility, located at 200 Brown Street, Greendale, Dearborn County, Indiana (the Site).

 

3.             National Pollutant Discharge Elimination System (NPDES) General Permit No. ING250000 (the Permit) became effective on November 8, 2015 to regulate discharges of once-through noncontact cooling wastewater into surface waters of the State of Indiana.

 

Respondent was assigned NPDES General Permit Approval Number ING250110 (the Permit Approval) to discharge once-through noncontact cooling wastewater, in accordance with the terms and conditions of the Permit, into Tanners Creek, via Outfall 001.

 

As the recipient of NPDES General Permit Approval Number ING250110, Giles Chemicals, Division of Premier Magnesia LLC is also known as the permittee.

 

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) via Certified Mail to:

 

Brian Coffey

Corporation Services Company

Plant Manager

Registered Agent

Giles Chemicals, Division of Premier

135 North Pennsylvania, Suite 1610

Magnesia LLC

Indianapolis, Indiana 46204

200 Brown Street

 

Greendale, Indiana 47025

 

6.             During an investigation conducted by a representative of IDEM, violations were found, as described below.

 

7.             327 Indiana Administrative Code (IAC) 5-2-8(1) states the permittee shall comply with all terms and conditions of the Permit. Any permit noncompliance constitutes a violation of the Clean Water Act and IC 13 and is grounds for enforcement action by IDEM.

 

8.             Pursuant to Part 2.0 of the Permit, all permittees must control discharges as necessary to meet numeric and narrative water quality standards in the receiving water for any discharges authorized by this permit.

 

Pursuant to Part 2.1, Table 3, of the Permit and Attachment 2, Table 3 of the Permit Approval, the permittee is authorized to discharge with a maximum water temperature of 57 degrees Fahrenheit (0F).

 

As documented on the December 2018 Discharge Monitoring Report (DMR) and the Monthly Monitoring Report (MMR), the discharge from Outfall 001 exceeded the monthly maximum water temperature by seven degrees Fahrenheit (7 0F), in violation of Part 2.0 and Part 2.1, Table 3, of the Permit, and Attachment 2, Table 3 of the Permit Approval.

 

9.        Pursuant to Part 2.1, Table 2, of the Permit and Attachment 2, Table 2 of the Permit Approval, pH is required to be sampled two times a month as a grab sample.

 

Pursuant to Part 3.2 of the Permit, measurement frequency of each parameter is identified in Section 2.1 of the Permit.

 

As documented on the November 2018 DMR and MMR, the discharge from Outfall 001 was not sampled for pH, in violation of Part 2.1, Table 2, of the Permit and Attachment 2, Table 2 of the Permit Approval.

 

10.      Pursuant to Part 3.6 of the Permit, for each measurement or sample taken pursuant to the requirements of the Permit, the discharger shall record the following information:

 

a.        the place (outfall number), date, and time of sampling;

b.        the person(s) who performed the sampling measurements;

c.        the dates and times the analyses were performed;

d.        the person(s) and laboratory who performed the analyses;

e.        the analytical techniques or methods used; and

f.         the results of all required analyses and measurements.

 

As noted during the inspection on December 18, 2018, the Dissolved Oxygen and pH laboratory bench sheets were found deficient, in violation of Part 3.6 of the Permit.

 

11.         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. In addition to addressing the violations cited in Paragraphs 8 through 10 of the Findings of Fact above, this Agreed Order also addresses any additional violations of these same rules that may have occurred subsequent to the issuance of the NOV and prior to the Effective Date.

 

2.             Respondent shall comply with rules and statutes listed in the findings above at issue.

 

3.             Immediately upon the Effective Date, Respondent shall complete the laboratory bench sheets as specified in Part 3.6 of the Permit.

 

4.             Immediately upon the Effective Date, Respondent shall monitor and report the parameters discharged from Outfall 001 as required by Part 2.0 of the Permit and Attachment 2 of the Permit Approval.

 

5.             Immediately upon the Effective Date, Respondent shall submit DMRs and MMRs, via NetDMR, no later than the 28th day of the month following each completed monitoring period.

 

6.             Within 15 days of the Effective Date, Respondent shall submit a corrected DMR and MRO for October and November 2018 with the correct NODI code for chlorine, total residual. Respondent shall also continue to use the correct NODI Code in future DMR and MRO submittals.

 

7.             Upon the Effective Date, Respondent shall demonstrate 12 consecutive months of compliance (Compliance Demonstration) with the terms and conditions of the Permit. Specifically with monitoring and reporting as required by Order Paragraph 4.

 

8.             Within 30 days after a monthly maximum water temperature exceedance at Outfall 001 during the Compliance Demonstration period, Respondent shall submit a Compliance Plan (CP). The CP shall identify actions Respondent will take to achieve and maintain compliance with the maximum water temperature required by Part 2.0 of the Permit and Attachment 2 of the Permit Approval.

 

The CP shall include an implementation and completion schedule, including specific milestone dates.

 

9.        The plan required by Order Paragraph 8 is subject to IDEM approval. In the event IDEM determines that the CP submitted by Respondent is deficient or otherwise unacceptable, Respondent shall revise and resubmit the CP to IDEM in accordance with IDEM’s notice. After three submissions of such plan by Respondent, IDEM may seek civil enforcement of this Order.

 

10.      Respondent, upon receipt of written notification from IDEM, shall immediately implement the approved plan and adhere to the milestone dates therein. The approved CP shall be incorporated into the Agreed Order and shall be deemed an enforceable part thereof.

 

Following completion of the actions included in the CP, the 12 month Compliance Demonstration, as specified in Paragraph 7 above, will re-start. Failure to achieve compliance at the conclusion of work under a CP may subject Respondent to additional enforcement action.

 

11.      Beginning with the first calendar quarter following the Effective Date, Respondent shall submit to IDEM a written progress report within 10 days of the end of each calendar quarter, which identifies the compliance actions implemented during each quarter ending on March 31st, June 30th, September 30th, and December 31st until completion of the CP.

 

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

 

Linda McClure, Enforcement Case Manager

Office of Water Quality – IGCN 1255

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

13.         Respondent is assessed and agrees to pay a civil penalty of Eight Thousand Five Hundred Dollars ($8,500). 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.”

 

14.         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

3

Failure to complete laboratory bench sheets as required.

$150 per week late, or part thereof.

4

Failure to monitor and report as required by the Permit.

$250 per week late, or part thereof.

5

Failure to submit DMRs and MMRs by the 28th day of the month following each completed monitoring period.

$250 per week late, or part thereof.

6

Failure to correct DMR and MRO for October and November 2018 with the correct NODI Codes.

$150 per week late, or part thereof.

7

For violations of terms and conditions of the Permit during the Compliance Demonstration.

$400 per violation

8

Failure to submit the CP within the required time period.

$250 per week late, or part thereof.

9

Failure to modify the CP, if required, within the given time period.

$500 per week late, or part thereof.

10

Failure to meet and/or implement any milestone date set forth in the approved CP.

$500 per week late, or part thereof.

11

Failure to submit to IDEM a written report of progress within 10 days of each calendar quarter.

$150 per week late, or part thereof.

 

15.         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.

 

16.         Civil and stipulated penalties are payable by check to the “Environmental Management Special Fund.” Checks shall include the Case Number 2019-25947-W of this action and shall be mailed to:

 

Office of Legal Counsel

Indiana Department of Environmental Management

IGCN, Rm N1307

100 North Senate Avenue

Indianapolis, IN 46204

 

17.         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.

 

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 and any accrued interest 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. 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.

 

19.         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.

 

20.         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.

 

21.         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.

 

22.         Complainant does not, by his 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.

 

23.         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 Notice of Violation.

 

24.         Nothing in this Agreed Order shall prevent IDEM (or anyone acting on its behalf) from communicating with the United States Environmental Protection Agency (US 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 US EPA or any other agency or entity.

 

25.         This Agreed Order shall remain in effect until Respondent has complied with the terms and conditions of this Agreed Order and IDEM issues a Resolution of Case (close out) letter to Respondent.

 

TECHNICAL RECOMMENDATION:

RESPONDENT:

Department of Environmental Management

Giles Chemicals, Division of Premier Magnesia LLC

 

By:__________________________

By:________________________

Samantha K. Groce, Chief

 

Water Enforcement Section

 

Surface Water, Operations &

Printed:_____________________

Enforcement Branch

 

Office of Water Quality

Title:_______________________

 

 

Date:________________________

Date:_______________________

 

 

COUNSEL FOR RESPONDENT:

 

 

 

By:________________________

 

 

 

Date:______________________

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS ___________ DAY OF ________________, 20___.

 

 

For The Commissioner:

 

 

Signed on September 25, 2019

 

Martha Clark Mettler

 

Assistant Commissioner

 

Office of Water Quality