) SS: OF ENVIRONMENTAL MANAGEMENT

COUNTY OF MARION )

COMMISSIONER OF THE DEPARTMENT )

OF ENVIRONMENTAL MANAGEMENT, )

)

Complainant, )

)

v. ) Case No. 2003-12930-W

)

Deflecto corporation )

d/b/a Literature Display Products, )

)

Respondent. )
 
 

The Complainant and the 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.
 
 

1. The Complainant is the Commissioner ("Complainant") of the Indiana Department of


Environmental Management, a department of the State of Indiana created by IC 13-13-1-1.

2. The Respondent is Deflecto Corporation d/b/a Literature Display Products ("Respondent"),


which owns and/or operates a product distribution facility at 121^st Street, Fishers, Hamilton County, Indiana (the "Site").

3. The Indiana Department of Environmental Management ("IDEM") has jurisdiction over

Deflecto Corporation for Deflecto Corporation

d/b/a Literature Display Products d/b/a Literature Display Products

7035 E. 86^th Street 36 S. Pennsylvania Street

Indianapolis, Indiana Suite 700

5. Pursuant to 327 IAC 5-2-2, any discharge of pollutants into water of the state as a point source discharge, except for exclusions made in 327 IAC 5-2-4, is prohibited unless in conformity with a valid National Pollutant Discharge Elimination System ("NPDES") permit obtained prior to discharge.
6. On March 8, 2003, a representative of IDEM conducted an investigation of a discharge of approximately 1,390 gallons of N&A Fruit Punch Flavor concentrate, product number FP-10566 (the "material"), from the Site to a broken sanitary sewer pipe, of which an undetermined amount of material was discharged to an unnamed ditch, which runs into Mud and Sand Creeks, without a NPDES permit. The Respondent failed to obtain a NPDES permit prior to discharging the material into the waters of the state, in violation of 327 IAC 5-2-2.
7. Pursuant to 327 IAC 2-1-6(a)(1), the following are minimum water quality conditions:

1. All waters at all times and at all places, including the mixing zone, shall meet the minimum conditions of being free from substances, materials, floating debris, oil or scum attributable to municipal, industrial, agricultural, and other land use practices, or other discharges:

1. that will settle to form putrescent or otherwise objectionable deposits;
2. that are in amounts sufficient to be unsightly or deleterious;
3. that produce color, visible oil sheen, odor, or other conditions in such degree as to create a nuisance;
4. which are in amounts sufficient to be acutely toxic to, or to otherwise severely injure or kill aquatic life, other animals, plants or humans.
5. which are in concentrations or combinations that will cause or contribute to the growth of aquatic plants or algae to such a degree as to create a nuisance, be unsightly, or otherwise impair the designated uses.

5. Pursuant to IC 13-30-2-1(1), a person may not discharge, emit, cause, allow or threaten to discharge, emit, cause, or allow any contaminant or waste, including any noxious odor, either alone or in combination with contaminants from other sources, into the environment.
6. Pursuant to IC 13-18-4-5, it is unlawful for any person to throw, run, drain, or otherwise dispose into any of the streams or waters of Indiana; or cause, permit, or suffer to be thrown, run, drained, allowed to seep, or otherwise disposed into any waters; any organic or inorganic matter that causes or contributes to a polluted condition of any waters, as determined by a rule of the board adopted under sections 1 and 3 of this chapter.
7. From March 3, 2003 through March 7, 2003, the Respondent discharged the material to waters of the state through a break in the sanitary sewer system, causing the water to turn red, in violation of 327 IAC 2-1-6(a)(1), and thus violating IC 13-30-2-1(1) and IC 13-18-4-5.
8. In recognition of the settlement reached, the Respondent waives any right to administrative and judicial review of this Agreed Order.

1. This Agreed Order shall be effective ("Effective Date") when it is approved by the Complainant or her delegate, and has been received by the Respondent. This Agreed Order shall have no force or effect until the Effective Date.
2. Immediately, upon the Effective Date of this Agreed Order, the Respondent shall maintain compliance with IAC 5-2-2, 327 IAC 2-1-6(a)(1), IC 13-30-2-1(1) and IC 13-18-4-5.
3. Within 30 days of the Effective Date of this Agreed Order, the Respondent shall provide documentation to IDEM at the address in Paragraph 4 below of the procedure used for packaging, transport, and disposal of the remaining containers of material that were not discharged to waters of the state.
4. All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:


Ms. Aletha Lenahan, Enforcement Case Manager

Office of Enforcement

Indiana Department of Environmental Management

Room N1315, 100 N. Senate Avenue

P. O. Box 6015

Indianapolis, IN 46206-6015

5. The Respondent is assessed a civil penalty of Three Thousand, Six Hundred Dollars ($3,600). Said penalty amount shall be due and payable to the Environmental Management Special Fund within 30 days of the Effective Date of this Agreed Order.
6. In the event the terms and conditions of the following paragraphs are violated, the Complainant may assess and the Respondent shall pay a stipulated penalty in the following amount:

 

 
 
 

PARAGRAPH	VIOLATION	PENALTY AMOUNT
4	Failure to timely submit documentation of material disposal procedures to IDEM.	$500 per week late

7. Civil and stipulated penalties shall be due and payable within 30 days after the Respondent receives written notice that the Complainant has determined a stipulated penalty is due. Assessment and payment of stipulated penalties shall not preclude the Complainant from seeking any additional relief against the Respondent for violation of the Agreed Order. In lieu of any of the stipulated penalties given above, the Complainant may seek any other remedies or sanctions available by virtue of the Respondent's violation of this Agreed Order or Indiana law, including, but not limited to, civil penalties pursuant to IC 13-30-4.
8. Civil and stipulated penalties are payable by check to the Environmental Management Special Fund. Payment shall include the Case Number, 2003-12930-W of this action and shall be mailed to:


Cashier

IDEM

100 N. Senate Avenue

P. O. Box 7060

Indianapolis, IN 46207-7060

9. In the event that the civil penalty required by Order Paragraph 5 is not paid within 30 days of the Effective Date of this Agreed Order, the 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.
10. This Agreed Order is not and shall not be interpreted to be a permit, or a modification of an existing permit, nor shall it in any way relieve the Respondent of its obligation to comply with the requirements of its applicable NPDES permit or with any other applicable federal or state law or regulation.
11. The Complainant does not, by its approval of this Agreed Order, warrant or aver in any manner that the Respondent's compliance with any aspect of this Agreed Order will result in compliance with the provisions of the Clean Water Act, NPDES permit, federal or state law.
12. This Agreed Order shall apply to and be binding upon the Respondent, its successors and assigns. The Respondent's signatories to this Agreed Order certify that they are fully authorized to execute this document and legally bind the parties they represent. No change in ownership, corporate, or partnership status of the Respondent shall in any way alter their status or responsibilities under this Agreed Order.
13. In the event that any terms of the 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 the Agreed Order did not contain the invalid terms.
14. The Respondent shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights are transferred. The 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 shall remain in effect until the Respondent has complied with terms and conditions of Paragraphs 3 through 9 of this Agreed Order and IDEM has issued a close-out letter to the Respondent.

COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:

The Department of Environmental Management

By: _________________________ By:

Joseph H. Merrick, Attorney

Office of Legal Counsel

Department of Environmental Management

Date: _______________________ Date:
 
 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS 2^nd DAY OF February , 2004.
 
 

For the Commissioner:
 
 
 
 
 
 

Felicia A. Robinson

Deputy Commissioner

for Legal Affairs