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BEFORE THE INDIANA DEPARTMENT |
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COMMISSIONER OF THE DEPARTMENT Complainant, v. AMERICAN FIBERTECH CORPORATION, Respondent. |
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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 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, a department of the State of
2.
Respondent is
American Fibertech Corporation which owns and/or operates Industrial Pallet Corp.
that manufactures and distributes industrial pallets, and is located at
3.
The Indiana
Department of Environmental Management (“IDEM”) has jurisdiction over the
parties and subject matter of this action.
4.
Pursuant to IC
13-30-3-3, on July 26, 2007, IDEM issued a Notice of Violation via Certified
Mail to:
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Robin R. Meister, President American Fibertech Corporation Industrial Pallet Corp., |
Stuart P. Boehning, Registered
Agent American Fibertech Corporation Industrial Pallet Corp., |
5.
Pursuant to 327
Indiana Administrative Code (“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 National
Pollutant Discharge Elimination System (“NPDES”) permit obtained prior to
discharge.
6.
On December 20,
2006, representatives of IDEM conducted an investigation of Respondent’s
facility and noted a point source discharge of industrial process wastewater (the
“wastewater”) that flowed from the Site, through the City of
7.
On January 10,
2007, IDEM issued a notice of sufficiency and a general stormwater permit for
the Site, with the NPDES permit No. INR220140, in accordance with 327 IAC 15-6.
8.
On or about June
19, 2007, Respondent commenced discharging its process wastewater from the Site
through the City of
9.
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 hours of
discovery, communicate a spill report to the Department of Environmental
Management, Office of Environmental Response.
10.
A reportable
spill of an unknown amount of industrial process wastewater discharged from the
Site for an undetermined period of time, and was not properly contained, and/or
responded to, and/or reported by Respondent, in violation of 327 IAC 2-6.1-7.
11.
Pursuant to
Indiana Code (“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.
12.
Respondent
caused and/or allowed the discharge of industrial process wastewater from the
heat treatment of chemically treated pallets and stormwater runoff in amounts
sufficient to be classified as a contaminant or waste from the Site into the
environment, in violation of 327 IAC 2-6.1-7, and thus violating IC
13-30-2-1(1).
13.
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:
(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) 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.
14.
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.
15.
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.
16.
During IDEM's
investigation at the Site on December 20, 2006, it was noted that industrial
process wastewater from the heat treatment of chemically treated pallets and
stormwater runoff, which came in contact with the stormwater runoff was
on-going, which caused or contributed to the contamination of the waters of the
State, 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.
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 his delegate, and has been received by Respondent. This Agreed Order shall have no force or
effect until the Effective Date.
2.
Immediately upon
the Effective Date, Respondent shall maintain compliance with Indiana
Administrative Codes and Indiana Codes: 327 IAC 5-2-2, 327 IAC 2-6.1-7, 327 IAC
2-1-6(a)(1), 327 IAC 15-6, IC 13-30-2-1(1), and IC 13-18-4-5.
3.
Within thirty
(30) days of the Effective Date, Respondent shall develop and submit to IDEM,
at the address in Order Paragraph 7 below, a Spill Response Plan (“SRP”) for
the Site. Attachment “A” of this Agreed
Order outlines the elements that need to be included in a SRP.
4.
Upon receipt of
written notification from IDEM, Respondent shall immediately implement the
approved SRP. The approved SRP shall be
incorporated into the Agreed Order and shall be deemed an enforceable part
thereof.
5.
In the event
that a discharge from any portion of Respondent’s facility that does not meet
all applicable rule or statutes, Respondent shall comply with the spill
reporting requirements of 327 IAC 2-6.1-5 and 327 IAC 2-6.1-7 as follows:
(1) Contain
the spill, if possible, to prevent additional spilled material from entering
the waters of the State.
(2) Undertake
or cause others to undertake activities needed to accomplish a spill response.
(3) As soon
as possible, but within two (2) hours of discovery, communicate a spill report
to the Department of Environmental Management at (317) 232-8795 during regular
business hours or (888) 233-7745 during non-business hours.
(4) Submit to
the Department of Environmental Management, a written copy of the spill report,
if requested in writing by the department.
(5) Except
from modes of transportation other than pipelines, exercise due diligence and
document attempts to notify the following:
(A) For
spills to surface water that cause damage, the nearest affected downstream
water user located within ten (10) miles of the spill and in the state of
(B) For
spills to soil outside the facility boundary, the affected property owner or
owners, operator or operators, or occupant or occupants.
6.
In the event
that Respondent observes a discharge from the Site to any waters of the State,
including but not limited to, Carpenter Creek, which may be attributable to a
discharge from the Site, Respondent shall comply with the spill reporting and
response requirements contained in 327 IAC 2-6.1.
7.
All submittals
required by this Agreed Order, unless notified otherwise in writing, 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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Room N1315 |
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8.
Respondent is
assessed a civil penalty of Five Thousand, Six Hundred Dollars ($5,600). Said penalty amount shall be due and payable
to the Environmental Management Special Fund within thirty (30) days of the
Effective Date.
9.
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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PARAGRAPHS |
VIOLATIONS |
PENALTY
AMOUNT |
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3 |
Failure to timely submit a
SRP for the Site. |
$1,000 per week late. |
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4 |
Failure to timely comply
with any milestone dates identified in the approved SRP. |
$1,000 per week late. |
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5 |
Failure to take all
reasonable actions to contain the spill, if possible, to prevent additional
spilled material from entering the waters of the State. |
$2,000 per violation. |
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5 |
Failure to timely report
spill to IDEM, as required. |
$2,000 per violation. |
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5 |
Failure to submit to IDEM,
a written copy of the spill report, if requested in writing. |
$2,000 per violation. |
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5 |
Failure to timely exercise
due diligence and document attempts to notify nearest affected downstream
water user, as required. |
$2,000 per violation. |
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6 |
Failure to timely comply 327
IAC 2-6.1. |
$2,000 per violation. |
10.
Civil and
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 the Agreed Order. In lieu of any of the stipulated penalties
given 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.
11.
Civil and
stipulated penalties are payable by check to the Environmental Management
Special Fund. Payment shall include the
Case Number, 2007-16576-W, of this action and shall be mailed to:
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Cashiers Office – Mail
Code 50-10C |
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Indiana Department of
Environmental Management |
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12.
In the event
that the civil penalty required by Order Paragraph 8, 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.
13.
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 Respondent of its obligation
to comply with the requirements of its applicable permit or with any other
applicable federal or state law or regulation.
14.
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 the Clean Water Act, permit, federal or state law.
15.
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 document and legally
bind the parties they represent. No
change in ownership, corporate, or partnership status of Respondent shall in
any way alter their status or responsibilities under this Agreed Order.
16.
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.
17.
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.
18.
This Agreed
Order shall remain in effect until Respondent has complied with terms and
conditions of Order Paragraphs 3 through 12 of this Agreed Order and IDEM has
issued a closeout letter to Respondent.
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TECHNICAL
RECOMMENDATION: |
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RESPONDENT: |
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Department
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American Fibertech Corporation Industrial Pallets Corp. |
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By: |
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Mark
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Water Enforcement Section |
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Office
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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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DAY OF |
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2007. |
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For
the Commissioner: |
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Signed
on October 24, 2007 |
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Robert
B. Keene |
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Assistant
Commissioner |
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Office
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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.