STATE OF
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BEFORE THE INDIANA DEPARTMENT
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OF ENVIRONMENTAL
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COMMISSIONER OF THE
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OF ENVIRONMENTAL
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Complainant, |
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v. |
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CASE NO. 2004-14164-W |
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RLH ENTERPRISES, INC., d/b/a |
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Respondent. |
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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. 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 the 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 (hereinafter referred to as “Complainant”) of the Indiana
Department of Environmental Management, a department of the State of
2. The Respondent is RLH Enterprises, Inc., d/b/a Plainfield Ready Mix (“Respondent”), which owns and/or operates a cement manufacturing facility and delivery business located at 743 N. Carr Rd., Plainfield, in Hendricks County, Indiana (the “Site”).
3. The
4. Pursuant
to IC 13-30-3-3, IDEM issued on
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Rick L. Hartman,
President |
Brett J. Miller,
Registered Agent |
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RLH Enterprises,
Inc., d/b/a |
for RLH
Enterprises, Inc. |
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2700 |
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5. A
records review and inspection on
Pursuant to IC 13-30-2-1, 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 IC 13-18-4-1 and IC 13-18-4-3.
Pursuant to Indiana Code 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 the state, or to cause, permit or suffer to be thrown, run, drained, allowed to seep, or otherwise disposed into any waters any organic or inorganic matter that shall cause or contribute to a polluted condition of any waters.
Pursuant to 327 IAC
Pursuant to 327 IAC 2-1-6(a)(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:
(A) that will settle to form putrescent or otherwise objectionable deposits;
(B) that are in amounts sufficient to be unsightly or deleterious;
(C) that produce color, visible oil sheen, odor, or other conditions in such degree as to create a nuisance;
(D) which are in amounts sufficient to be acutely toxic to, or to otherwise severely injure or kill aquatic life, other animals, plants or humans…; and
(E) 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.
An investigation by IDEM,
which included a review of records and the inspection of Respondent’s Carr Road
facility on March 18, 2004, indicates that the Respondent discharged wastewater
containing cement/lime material from its
Ready Mix operation and cement truck wash area sediment basin through a
swale onto neighboring property and thenceforth the wastewater would enter the
local ditch. During the inspection, the
white cement solids were observed in the swale and in the wetland area of the
neighboring property. This discharge
without an NPDES Permit is in violation of IC 13-30-2-1, IC 13-18-4-5, 327 IAC
6. In recognition of the settlement reached, the 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 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. The Respondent shall comply with all applicable provisions of the Indiana Code (IC) and Indiana Administrative Code (IAC), including, but not limited to, IC 13- 30-2-1, IC 13-18-4-5, 327 IAC 5-2-2, and 327 IAC 2-1-6(a)(1) with respect to the discharge of process pollutants from the Site. The Respondent shall dispose of such wastewater in a lawful manner.
3. Within 30 days of the Effective Date of this Agreed Order, the Respondent shall develop and submit to IDEM for its approval a Compliance Plan (CP) to manage its wastewater, including:
a. routine and proper disposal of process wastewater generated at the Site,
b. maintenance of all process wastewater collection, treatment, storage, and disposal facilities in good working order, and
c. an evaluation to determine the need for any cleanup/removal of waste material in the swale and drainage way, including an implementation and completion schedule with specific milestones.
4. The Respondent shall, for 12 months
from the Effective Date (Performance Period), demonstrate continuous compliance
with 327 IAC
5. The plan required by Paragraph 3 above is subject to IDEM approval. If IDEM deems the plan inadequate, a revised plan shall be submitted within 30 days of receipt of notice from IDEM of the inadequacies thereof. If, after submission of the first revised plan, IDEM still finds the plan to be inadequate, then IDEM will request further modification of the plan as necessary to meet IDEM’s requirements, and require re-submittal of the plan by a specific date. If the subsequently submitted second revised plan does not meet IDEM’s approval, IDEM will suggest specific modifications to be made to the plan and require re-submittal by a specific date. If, by the specified date, the Respondent does not submit a third revised plan that incorporates the IDEM-suggested modifications or submit an alternative adequate plan (as determined by IDEM), the IDEM-suggested modifications will be deemed incorporated into the plan.
The approved CP shall be incorporated into the Agreed Order and shall be deemed an enforceable part thereof. The Respondent, upon receipt of written approval from IDEM, shall immediately implement the approved plan and adhere to the milestone dates therein.
6. The Respondent is assessed a civil penalty of Three Thousand Four Hundred Dollars ($3,400). 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.
7. All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:
Paul Cluxton, IDEM, Office of Enforcement
8. Beginning on the Effective Date, the Respondent shall operate its facility wastewater system as efficiently and effectively as possible, in a manner so as to prevent wastewater discharges to the swale.
9. In the event the terms and conditions of the following Order paragraphs are violated, the Complainant may assess and the Respondent shall pay a stipulated penalty in the following amount:
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Order Paragraph |
Violation
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Penalty Amount |
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3 |
Failure to submit the CP, as required, within the given time period. |
$250 per each week or part thereof late |
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4 |
Discharge during the 12 month Performance Period |
$1000 per day of unlawful discharge |
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Failure to submit or resubmit a revised CP, if required, within the given time period. |
$250 per each week or part thereof late |
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Failure to meet any milestone date set forth in the approved CP. |
$500 per each week or part thereof late |
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8 |
Failure to operate its wastewater system as efficiently and effectively as possible. |
$500 per violation |
10. 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
11. 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
12. In the event that the civil penalty required by Order Paragraph 6 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.
13. 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 its status or responsibilities under this Agreed Order.
14. 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.
15. 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.
16. 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 or state law.
17. “Force Majeure”, for purposes of this Agreed Order, is defined as any event arising from causes totally beyond the control and without fault of the 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 the 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 changed business or economic conditions, financial inability to complete the work required by this Agreed Order, or increases in costs to perform the work.
The 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 the Respondent contends is a force majeure. Such notification shall describe the anticipated length of the delay, the cause or causes of the delay, the measures taken or to be taken by the Respondent to minimize the delay, and the timetable by which these measures will be implemented. The 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. The 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.
18. This Agreed Order shall remain in effect until the Respondent has complied with all
terms and conditions of this Agreed Order Paragraphs 2 through 12 and IDEM issues a close-out letter to the Respondent.
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TECHNICAL
RECOMMENDATION: |
RESPONDENT: |
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Department of
Environmental Management |
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By: |
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By: |
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Mark W. Stanifer |
Printed: |
______________________________ |
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Section Chief, Water Section |
Title: |
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Office of
Enforcement |
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Date: |
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Date: |
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COUNSEL FOR COMPLAINANT: |
COUNSEL FOR
RESPONDENT: |
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Department of
Environmental Management |
Bingham McHale LLP |
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By: |
_____________________________ |
By: |
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Jay Rodia |
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Office of Legal
Counsel |
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Date: |
_____________________________ |
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For The Commissioner:
Signed on
Linda Runkle
Assistant Commissioner