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STATE OF |
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BEFORE THE INDIANA
DEPARTMENT |
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COMMISSIONER OF THE
DEPARTMENT Complainant, v. PRINCE MINERALS, INC., Respondent. |
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AGREED ORDER
Complainant and Respondent (also
referred to each as “Party”) 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. Each
Party’s entry into this Agreed Order shall not constitute a waiver of any right
or defense, legal or equitable, which either Party may have in any future
administrative or judicial proceeding, except the proceedings 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
2.
Respondent is Prince Minerals, Inc. (“Respondent”), which owns and/or
operates the Prince Manufacturing Company, which it acquired in 2004. Prince Manufacturing Company’s main sales office
is located at
3.
IDEM has
jurisdiction over the parties and the subject matter of this action.
4.
Pursuant to IC
13-30-3-3, on August 22, 2006, IDEM issued a Notice of Violation via Certified
Mail No. 7002 0510 0004 0399 5377 to:
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Darryl Mayton, Secretary |
Illinois Corporation Service |
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The Prince Manufacturing
Company |
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One |
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5.
During an
investigation conducted by a representative of IDEM, the following violations
were found:
6.
Pursuant to 327 Indiana Administrative Code (“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,
E. and 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.
7.
On or about May
7, 2005, Respondent
applied water mixed with lignin sulfonate
(“Dust Suppressant”) at the Site. Respondent caused
and/or allowed approximately fifty (50) gallons of Dust Suppressant to
discharge from a gravel lot at or near 1001 HRJ Lane, and approximately thirty
(30) gallons of Dust Suppressant from at or near 311 Cathy Lane, into storm
sewers that flowed to unnamed ditches, which drained to Buffalo Creek, and ran to
Patoka River, waters of the State. The
discharge continued to impact the waters of the State from on or about May 7,
2005 to May 12, 2005, which caused the pollutant to settle to form
objectionable deposits; in amounts sufficient to be unsightly or deleterious; which
produced the pollutant ammonia nitrogen that caused the waters of the State to
turn a brownish color; produced a fish kill, where at least ten (10) fish were
observed to be dead by a representative of the Indiana Department of Natural
Resources (“IDNR”), and caused other conditions in such degree as to create a
nuisance, in violation of 327 IAC 2-1-6(a)(1).
8.
Pursuant to 327 IAC 2-6.1-7, any person who operates,
controls or maintains any mode of transportation or facility from which a spill
occurs shall, upon discovery of a reportable spill to the soil or surface
waters of the State, contain the spill, if possible, to prevent additional
spilled material from entering the waters of the State; undertake or cause
others to undertake activities needed to accomplish a spill response; and as
soon as possible, but within two (2) hours of discovery, communicate a spill
report to the Department of Environmental Management, Office of Environmental
Response.
9.
The reportable spills of approximately eighty (80) gallons of
Dust Suppressant from the Site into storm
sewers, flowed to unnamed ditches, that drained to Buffalo Creek, which flowed
to Patoka River, waters of the State, and occurred from on or about May 7, 2005
to May 12, 2005, and were not properly contained and/or responded to and/or
reported by Respondent, in violation of 327 IAC 2-6.1-7.
10.
Pursuant to 327 IAC 5-2-2, any discharge of pollutants into
waters 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 NPDES Permit obtained
prior to the discharge.
11.
Respondent caused and/or allowed the discharge of approximately
eighty (80) gallons of Dust Suppressant, a pollutant, from the
Site from on or about May 7, 2005 to May 12, 2005, into storm sewers draining
to unnamed ditches, draining to Buffalo Creek, and draining to Patoka River,
waters of the State, without a valid NPDES permit, and without meeting any of
the exclusions in 327 IAC 5-2-4, in violation of 327 IAC 5-2-2.
12.
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
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 causes or contributes to a polluted condition of any waters, as determined
by a rule of the board adopted under Indiana Code 13-18-4-1 and Indiana Code
13-18-4-3.
13.
Respondent caused and/or allowed the discharge of Dust Suppressant, an organic matter, from the Site from on or about
May 7, 2005 to May 12, 2005, into storm sewers draining to unnamed ditches
draining to Buffalo Creek draining to Patoka River, waters of the State, in
violation of 327 IAC 2-1-6(a)(1) and 327 IAC 5-2-2, and thus violated IC
13-18-4-5.
14.
Pursuant to IC 13-30-2-1(1), no person may 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 or into any publicly
owned treatment works in any form which causes or would cause pollution which
violates or which would violate rules, standards, or discharge or emission
requirements adopted by the appropriate board under the environmental
management laws.
15.
Respondent caused and/or allowed the discharge of approximately
eighty (80) gallons of Dust Suppressant, a contaminant or waste,
into the environment from the Site, on or about May 7, 2005, in violation of
327 IAC 2-1-6(a)(1) and 327 IAC 5-2-2, and thus violated IC 13-30-2-1(1).
16.
On December 12,
2006, representatives of IDEM and Respondent held a settlement conference to
discuss the Notice of Violation issued on August 22, 2006, and the actions
Respondent has voluntarily undertaken to reduce the risk of future spills to
the environment, which may result from the Dust Suppressant application.
Specifically, representatives of IDEM reviewed Respondent’s procedures
for proper Dust
Suppressant application, proposed
revisions to Respondent’s model contract with customers, and the checklist that
establishes procedures that are required to be followed prior to the Dust Suppressant
application.
17.
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 approved by Complainant
or Complainant’s delegate, and has been received by Respondent. This Agreed Order shall have no force or
effect until the Effective Date.
2.
Immediately, Respondent
shall maintain compliance with all provisions of the Indiana Code and the
Indiana Administrative Code, including 327 IAC 2-1-6(a)(1), 327 IAC 2-6.1-7, 327 IAC 5-2-2,
IC 13-30-2-1(1), and IC 13-18-4-5, and all other rules and statutes applicable when it applies Dust Suppressant.
3.
Prior to the Dust Suppressant application on roads in the state of
4.
During the period
that Respondent’s operations include but are not limited to, the sales,
application, and transport of the Dust Suppressant on
roads in the state of Indiana, it shall take all
necessary steps to, at all times, maintain in good working order, and
efficiently and effectively operate its storage and transport equipment. In the event of a spill or discharge from any
portion of Respondent’s storage and transport equipment that impacts the soil
and/or surface waters of the State, Respondent shall comply with 327 IAC 2-6.1, and the
following:
a.
take all
reasonable actions to contain any spill, if possible, to prevent additional
spilled material from entering the waters of the State as soon as possible;
b.
undertake or
cause others to undertake activities needed to accomplish a spill response to
properly clean the area affected by the spill or discharge (“affected area”);
c.
remove and
properly dispose of pollutants from the affected area;
d.
as soon as
possible communicate a spill report to IDEM; and
e.
report the spill
or discharge event as follows:
(i)
within two (2)
hours of Respondent’s discovery of the discharge event, Respondent shall
provide verbal notification of the event to IDEM, at (317) 232-8795 during
regular business hours or (888) 233-7745 during non-business hours;
(ii)
within five (5)
days of Respondent’s discovery of the discharge event, Respondent shall submit
written notification of the event to IDEM.
The notification shall include the following information:
·
the duration and
cause of the discharge,
·
the remedial
action taken to eliminate it, and
·
the actions that
have been or that will be taken to prevent reoccurrence.
(iii)
for discharges
Respondent shall report the duration and estimated volume of the discharge
event to IDEM.
·
document all
actions taken to cease the discharge and to remediate the affected areas,
retain copies of the documentation, and allow IDEM representatives to inspect
and copy these records upon request.
5.
Within thirty (30)
days of the Effective Date, Respondent shall develop and submit to IDEM, a plan
and schedule to train any of Respondent’s employees who regularly transport
and/or apply Dust Suppressant to comply with the Clean Water Act and all rules
and statutes applicable to those activities.
Respondent shall submit to IDEM documentation of the plan and schedule
to the address in Order Paragraph 8 below.
6.
Within thirty (30)
days of the Effective Date, Respondent shall submit to IDEM, at the address in Order
Paragraph 8, a copy of its Spill Response Plan (“SRP”) template. The SRP shall be completed for each Dust
Suppressant application performed by Respondent or its subcontractors. Attachment “A” of this Agreed Order outlines
the elements that need to be included in a SRP.
7.
The SRP template
required pursuant to Order Paragraph 6 above shall, upon approval by IDEM, be
incorporated into the Agreed Order and shall be deemed an enforceable part
thereof. Respondent, upon receipt of
written approval from IDEM, shall immediately implement the completed SRP at
the time of an illegal discharge and adhere to its provisions contained
therein. Said SRP shall be provided to
contracting firms and/or other persons performing the Dust Suppressant
application on behalf of Respondent.
8.
All submittals
required by this Agreed Order, unless Respondent is notified otherwise in
writing by IDEM, shall be sent to:
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Aletha
Lenahan, Enforcement Case Manager |
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Indiana
Department of Environmental Management |
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Office
of Enforcement – Mail Code 60-02 |
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IGCN
Room 1315 |
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9.
Respondent is
assessed a civil penalty of Eight Thousand, Four Hundred Thirty-Seven Dollars ($8,437). Said penalty amount shall be due and payable
to the Environmental Management Special Fund within thirty (30) days of the
Effective Date. In the event that the
civil penalty is not paid within thirty (30) days of the Effective Date,
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.
In the event the
terms and conditions of the following paragraphs are violated, Complainant may
assess and Respondent shall pay a stipulated penalty in the following amount:
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Paragraph |
Violation
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Penalty Amount |
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3 |
Failure
to provide written instructions to customers and subcontractors for properly conducting environmentally safe Dust Suppressant
applications. |
$500 per week late. |
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4 |
Failure
to properly operate and maintain its storage and transport equipment of Dust
Suppressant. |
$1,000
per day per violation. |
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4 |
Failure to take all
reasonable actions to cease any illegal discharges as soon as possible;
properly clean the area affected by the illegal discharge (“affected area”);
remove and properly dispose of the Dust Suppressant or other pollutant(s)
from the affected areas; and report the illegal discharge event, as required,
and failure
to comply with the spill reporting and response requirements contained in 327
IAC 2-6.1. |
$1,000
per day per violation. |
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5 |
Failure
to submit a plan and schedule to properly train employees and document
training, as required. |
$500 per week late. |
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6 |
Failure to timely submit a
SRP, as required. |
$500 per week late. |
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7 |
Failure to timely
implement the SRP, as required. |
$500
per violation. |
11.
Stipulated
penalties shall be due and payable within thirty (30) days after Respondent
receives written notice that Complainant has determined a stipulated penalty is
due. Assessment and payment of
stipulated penalties shall not preclude Complainant from seeking any additional
relief against Respondent for violation of this Agreed Order. In lieu of any of the stipulated penalties
set out above, Complainant may seek any other remedies or sanctions available
by virtue of Respondent’s violation of this Agreed Order or Indiana law,
including, but not limited to, civil penalties pursuant to IC 13-30-4.
12.
Civil and
stipulated penalties are payable by check to: “The Environmental Management
Special Fund.” Checks shall include the
Case Number 2006-15761-W, of this action and shall be mailed to:
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Indiana
Department of Environmental Management |
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Cashier
– Mail Code 50-10C |
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13.
In the event
that the civil penalty required by Order Paragraph 9, is not paid within thirty
(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.
14.
This Agreed
Order shall apply to and be binding upon Respondent and its successors and
assigns. Respondent’s signatory to this
Agreed Order certifies that he/she is fully authorized to execute this Agreed
Order and that such signature legally binds Respondent. No change in ownership, corporate, or partnership
status of Respondent shall in any way alter its status or responsibilities
under this Agreed Order.
15.
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.
16.
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 contracting
firms and/or other persons performing the Dust Suppressant application on behalf of Respondent under the Agreed Order
comply with the terms herein.
17.
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 permit or any applicable Federal
or State law or regulation.
18.
The 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 the Respondent’s
efforts to comply with this Agreed Order.
19.
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.
20.
Nothing in this
Agreed Order shall prevent IDEM or anyone acting on its behalf from
communicating with the U. S. Environmental Protection Agency (“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 EPA or any other agency or entity.
21.
This Agreed
Order shall remain in effect until Respondent has complied with all terms and
conditions of Order Paragraph Numbers 5 through 13 and at that time IDEM shall issue
a Resolution of Case letter.
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TECHNICAL RECOMMENDATION: |
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RESPONDENT: |
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Department of Environmental Management |
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Prince Minerals, Inc. |
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Mark W. Stanifer, Chief |
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Water Enforcement Section |
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Office of Enforcement |
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COUNSEL FOR COMPLAINANT: |
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COUNSEL FOR RESPONDENT: |
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For the Department of Environmental Management |
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By: |
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By: |
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Deputy Attorney General |
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Date: |
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APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF
ENVIRONMENTAL |
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MANAGEMENT THIS |
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, 2007. |
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For the Commissioner: |
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Signed on December 3, 2007 |
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Robert B. Keene |
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Assistant Commissioner |
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Office of Legal Counsel and Enforcement |
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ATTACHMENT A
A Spill Response Plan will
include, but not be limited to, the following:
(1)
The names and
telephone numbers of persons who are identified by Respondent as responsible
for implementing the Spill Response Plan.
(2)
Identification
of areas where potential spills can occur and their accompanying drainage
points.
(3)
Procedures to be
followed in the event of a spill, including the following:
(A)
Actions to
contain or manage any type of spill.
(B)
Identification
of the proper authorities to be contacted.
(C)
Mitigation of
any adverse effects of the spill.
(4)
Identification
of equipment and clean-up materials to be used in the event of a spill.
(5)
Procedures for
reporting the spill to:
(A)
Any applicable local
emergency or health authorities; and
(B)
IDEM, in
accordance with 327 IAC 2-6.1.