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STATE OF INDIANA |
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BEFORE THE INDIANA DEPARTMENT OF |
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COUNTY OF MARION |
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ENVIRONMENTAL MANAGEMENT |
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COMMISSIONER OF THE DEPARTMENT |
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OF ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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Case Nos. 2008-17921-H and |
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2008-18039-H |
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DALTON
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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 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 Indiana
Code (“IC”) 13-13-1-1.
2.
Respondent
is Dalton Corporation (“Respondent”), which owns and/or operates a foundry
located at 1900 Jefferson Street in Warsaw, Kosciusko County, Indiana (“the
Foundry”), and a Restricted Waste Site Type II landfill located near the
junction of County Road 250 South and State Road 25, in Kosciusko County,
Indiana ("the RWS").
3.
IDEM
has jurisdiction over the parties and the subject matter of this action.
4.
Pursuant
to IC 13-30-3-3, IDEM issued a Notice of Violation ("NOV") via
Certified Mail to:
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Joseph
L. Derita, President |
Corporation
Service Company |
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Dalton
Corporation |
Registered
Agent for Dalton Corporation |
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3755
Lake City Highway |
251
E. Ohio Street, Ste. 500 |
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Warsaw,
Indiana 46582 |
Indianapolis,
Indiana 46204 |
5.
Respondent
manufactures gray iron castings and machined components for the air conditioning/refrigeration,
automotive, heavy truck, and other industrial markets.
6.
On
January 25, 2008, Respondent was issued a Solid Waste Facility Permit Renewal,
FP 43-06, for the RWS. The RWS may only
accept restricted wastes from Respondent's Warsaw and Kendallville facilities
which are approved in the permit. The
Kendallville foundry closed in March 2009.
7. Pursuant to IC 13-30-3-3, entry into
the terms does not constitute an admission of any violation contained
herein. During an investigation,
including inspections at the RWS on March 13 and June 17, 2008, and at the
Foundry on August 19, 2008, conducted by a representative of IDEM, the following
violations were found:
a.
Pursuant
to 329 IAC 10-4-2, no person shall cause or allow the storage, containment,
processing, or disposal of solid waste in a manner which creates a threat to
human health or the environment, including the creating of a fire hazard,
vector attraction, air or water pollution, or other contamination.
As noted during the
March 13 and June 17, 2008 inspections, Respondent allowed the disposal of
solid wastes at the RWS in a manner which created a threat to human health and
the environment. Waste tires and plastic
pipes were observed in a low area west of the access road in Phase 1. A corroded 55-gallon container of unknown
material and a plastic storage container were also observed in the disposal
area of Phase 3.
Additionally,
Respondent, on August 19, 2008, allowed releases of solid wastes at multiple
areas of the Foundry, including, but not limited to, the following areas:
1)
Foundry
wastes and/or other solid wastes were observed on the ground at the Charge
Yard, on the north, south, and west sides of the storm water conveyance located
on-site, around the baghouses, around roll-off
containers, on the in-plant roadway, and along the southwest side of the
Foundry near the finishing operations.
Some of these wastes were observed entering and/or having the potential
to enter the storm water conveyance located on-site; and
2)
Waste
from the filter press building in the Melt Department and excess foundry sand
overflowing from the Herman 3 overflow chute were observed discharging from the
building and onto the ground on the north side of the Charge Yard, east of baghouse #11 collection bin at the Foundry.
b. Pursuant to IC 13-30-2-1(1), no person
shall 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 in any
form that causes or would cause pollution that violates or would violate rules,
standards, or discharge or emission requirements adopted by the appropriate
board under the environmental management laws, which includes 329 IAC 10-4-2.
As noted in
paragraphs a. and b. above, during the March 13, June 17, and August 19, 2008
inspections, Respondent allowed and/or threatened to allow contaminants and/or
wastes into the environment in violation of 329 IAC 10-4-2.
Pursuant to Permit
Requirement D5, Respondent must control public access to the facility and
prevent unauthorized vehicular traffic and illegal dumping of wastes.
As noted during the
March 13 and June 17, 2008 inspections, several pieces of furniture were
observed inside the facility boundary along the north side of the road near the
site entrance, thereby indicating a failure to control public access.
d. Pursuant to 329 IAC 10-9-4, a
restricted waste site must accept only the restricted waste types determined
according to the classification criteria in 329 IAC 10-9-4. Waste analyses submitted to the commissioner
for review must be accompanied by sufficient documentation of representative
sampling and quality assurance and quality control measures to establish that
the applicable procedures were conducted under adequate controls.
As noted during the
March 13 and June 17, 2008 inspections, Respondent did not comply with 329 IAC
10-9-4. Respondent was unable to provide
quality assurance for the sampling data submitted for its most recent waste
classifications. Information on the
sample locations or units from where the samples were collected was not available
or documented by Respondent. Waste
classification WC 06-011 is identified as Shot Blast and Grinder Dust (Type
II). The Grinder Dust (WC 06-014) by
itself is a Type I waste and is not permitted for disposal at the RWS. Shot Blast and Grinder Dust (WC-06-011) is
accumulated in baghouse #6, baghouse
#12, and baghouse #16. The amount of grinding dust received by each
of these baghouses varies considerably and Respondent
does not know from what unit the samples were collected. Respondent also generates Yard Cleanup (WC
06-007) from dredging and dewatering activities in the yard. Respondent's representative indicated that
Yard Cleanup is runoff comprised of various uncontainerized
foundry wastes removed from the storm water conveyance in the yard and placed
on a pile of Excess Sand (WC-005) for dewatering. During the March 13 and June 17, 2008
inspections, the pile of sand for dewatering contained Core Sand (WC 06-018)
and not excess sand. The information
submitted for the Yard Cleanup waste classification approval is not consistent
with the current operations and contains a variety of wastes from poor
housekeeping practices that can change daily.
Further, uncovered Grinder Dust that is prohibited from disposal in the
landfill was observed in Phase I.
Additionally, the August 19, 2008 inspection revealed that Respondent
accepted #3 Dust Collector Bin waste for disposal in the RWS without a waste
classification.
d.
Pursuant
to 329 IAC 10-28-2 and Permit Requirements E3 and E4, on-site roads that provide
access to disposal areas must be passable to vehicles utilizing these
areas. The owner or operator of a
restricted waste site Type I or Type II or nonmunicipal
solid waste landfill shall construct and maintain on-site roads in such a way
as to minimize the tracking of mud or soil material from the facility onto
public highways or provide and maintain equipment to remove any such mud or
soil material that is tracked onto the public highways. Access to monitoring wells for vehicles
driven by department representatives must be provided. Vegetation must be controlled on the access
way and around the wells.
As noted during the
March 13 and June 17, 2008 inspections, Respondent had not provided access
roads to the monitoring wells and had not maintained control of the vegetation
around the monitoring wells.
e.
Pursuant
to Permit Requirement D3, permanent visible boundary markers which delineate
the approved facility and waste boundaries shall be maintained for the life of
the facility.
As noted during the
March 13 and June 17, 2008 inspections, Respondent did not maintain visible
boundary markers delineating the approved facility and waste boundaries.
f.
Pursuant
to 329 IAC 10-28-6, salvaging on-site at a restricted waste site Type I or Type
II or nonmunicipal solid waste landfill must be done
only under the supervision of the owner or operator and must not interfere with
the facility operations. Salvaged
materials must be stored in buildings or transportable containers while
awaiting removal from the facility. Alternative
methods of storing salvaged materials must have prior approval from the
commissioner. Approval may be granted at
the request of the owner or operator if the owner or operator can demonstrate
that the alternative method will provide a comparable level of environmental
protection.
As noted during the
March 13 and June 17, 2008 inspections, Respondent segregated scrap material at
the RWS and the salvaged material was deposited onto the ground.
g.
Pursuant
to IAC 10-28-8, restricted waste sites Type I and Type II and nonmunicipal solid waste landfills must maintain on-site an
up-to-date copy of the plans and specifications approved by the commissioner in
granting the permit. Restricted waste
sites Type I and Type II and nonmunicipal solid waste
landfills must maintain on-site a plot plan of the solid waste land disposal
facility. The plot plan must be updated
quarterly. The plot plan must describe
the following:
(1) Areas of excavation;
(2) Areas of current filling;
(3) Areas under intermediate cover;
(4) Filled areas lacking final cover; and
(5) Finished areas with final cover contoured
and seeded.
As noted during the
March 13 and June 17, 2008 inspections, Respondent did not maintain an updated
quarterly plot plan detailing the required information listed above.
h.
Pursuant
to 329 IAC 10-28-10, Permit Requirement D6, and Requirement 3 of Permit Minor
Modification, dated 12/2/2005, restricted waste sites Type I and Type II
landfills must not deposit solid waste in standing or ponded
water except for that water resulting from precipitation directly upon the
working face. Surface water must be
diverted from the active fill area to minimize surface water contact with the
waste and interference with the daily operation.
As noted during the March 13 and
June 17, 2008 inspections, Respondent did not divert surface water from the
active fill area and did not minimize surface water contact with the
waste. Surface water was ponded on the bottom of the fill area of Section 1 of Phase
3. Visual evidence of erosion cuts
indicated that surface water was washing out buried waste from the top of the
fill area and depositing it into the bottom of the open cell. Incoming waste was also being deposited into Section
1 of Phase 3 from the top of the slope where it then fell into the pond of
surface water. A minor modification to
the permit, dated December 2, 2005, required Respondent to install a leachate collection sump to divert leachate
from the base of the fill area. The sump
had been installed, but was not being utilized for leachate
collection.
Since the dates of
the inspections, Respondent has taken the sump which was required by a minor
modification to the permit, dated December 2, 2005, out of service.
i.
Pursuant
to 329 IAC 10-28-11, 329 IAC 10-30-3, and Permit Requirement D9a, cover for
restricted waste sites Type I and Type II and nonmunicipal
solid waste landfills must be soil of Unified Soil Classification ML, CL, MH,
CH, or OH, or other suitable material approved by the commissioner to provide
an adequate level of environmental protection.
Cover must be applied and maintained at restricted waste sites Type I
and Type II and nonmunicipal solid waste landfills in
accordance with the applicable requirements of this rule and 329 IAC
10-30-3. Other provisions for cover may
be approved by the commissioner if it can be demonstrated that an alternate
cover or site design will provide an adequate level of environmental
protection.
The intermediate
yearly cover variance granted for use in all three phases of landfilling requires that Respondent shall minimize the
working face of the landfill. All areas
of the landfill filled to the approved elevations shall comply with 329 IAC
10-30-3. All other areas that have not
received additional waste within one (1) year of the time of the filling shall
be covered with six (6) inches of intermediate cover material. Intermediate cover material may be composed
of soil as defined in 329 IAC 10-28-11, or foundry sand classified as restricted
waste Type IV under 329 IAC 10-9.
As noted during the
March 13 and June 17, 2008 inspections, Respondent had not minimized the
working face of the landfill and had not filled in all three phases. There were many areas that had not received
waste within one year and had not received intermediate cover. Respondent had only applied intermediate
cover to the western edge of Phase 1 and the southern edge of Phase 2; erosion
was observed in both of these areas. Between
Phase 2 and Phase 3, there was a large slag pile that had exceeded the height
limit and final cover had not been applied.
j.
Pursuant
to Permit Requirement D9b, the intermediate yearly cover variance granted for
use in all three phases of landfilling requires the
following: For any area of the landfill
having intermediate cover, additional erosion and sediment control measures
must be implemented within fifteen (15) days after placement of the
intermediate cover. The
erosion/sedimentation control measures may include, but are not limited to, the
establishment of vegetation, use of alternative/synthetic covers or liners,
and/or the use of other applicable erosion/sedimentation control measures.
As noted during the
March 13 and June 17, 2008 inspections, Respondent had not implemented any
erosion and sediment control measures to minimize sediment and waste from
leaving the active portions of the RWS.
There were numerous areas throughout the landfill that had severe
erosion problems, some extending down through the cover and into the waste. On the north side of Phase 2, an erosion cut
was observed that had gone completely through the waste and into the clay
liner, approximately twelve (12) feet deep.
Sediment, waste, and leachate were observed leaving the active fill area through
two drainage ditches. The first ditch
discharges into a wetland to the north adjacent to Boggs Ditch. On the March 13 and June 17, 2008
inspections, runoff from Phase 3, Section 1, had caused severe erosion of the stormwater conveyance bank at the check dam which feeds
into the wetland.
Another drainage
ditch receiving runoff from Phase 1 discharges to a culvert that runs under
State Road 25 and then into a pond located outside the facility boundary. On the March 13 and June 17, 2008
inspections, this drainage ditch was filled with foundry waste at the check dam
and the runoff was flowing around the structure. The channel of the drainage ditch was black
all the way to the discharge point at State Road 25. Furthermore, Respondent did not conduct
inspections or perform preventative maintenance on the drainage ditches, check
dams, or other sedimentation/erosion control devices.
k.
Pursuant
to 329 IAC 10-28-13, and Permit Requirements D9c and D13, notwithstanding the
cover requirements of this rule and 329 IAC 10-30-3 for restricted waste site
Type II, if the facility operation is found to be in violation of fugitive dust
regulations of the air pollution control board or if the commissioner documents
evidence of visible waste deposits carried by wind or surface water beyond the
site property boundary, restricted waste site Type II must complete the
following:
(1) Apply daily cover; and
(2) Submit a plan to control dispersal.
Application of daily
cover must continue until a dispersal control plan is approved by the
commissioner.
Respondent shall take
appropriate measures to minimize fugitive dust and sediment and erosion at the
facility. An
unacceptable inspection report by IDEM documenting that fugitive dust,
uncontrolled sediment, or erosion are creating a nuisance or threat to human
health and the environment, may lead to the revocation of the intermediate
yearly cover variance.
As noted during the
March 13 and June 17, 2008 inspections, Respondent allowed waste to be
deposited beyond the site property boundary by surface water runoff. Stormwater runoff which
may have included foundry waste was observed leaving the site at the State Road
25 discharge point.
l.
Pursuant
to 329 IAC 10-28-14, cover material applied as required in sections 11 through
13 of this rule and 329 IAC 10-30-3 must be continuously maintained, including
application and compaction of additional cover as needed to maintain required
depth. Restricted waste sites Type I and
Type II and nonmunicipal solid waste landfills must
be graded to promote surface water drainage and to prevent the ponding of water on previously filled areas. Vegetation must be cleared only as necessary.
As noted during the
March 13 and June 17, 2008 inspections, Respondent did not maintain the covered
portions of the landfill and did not properly grade the filled areas to promote
surface water drainage. Erosion was
observed in the intermediate cover on the western edge of Phase 1 and the
southern edge of Phase 2. Exposed waste,
ponding water, and large trees were also observed on
the southern edge of Phase 2.
n. Pursuant to 329 IAC 10-28-15, any leachate on the surface of restricted waste site Type I and
Type II and nonmunicipal solid waste landfills must
be immediately managed or controlled to prevent off-site migration. Any surface movement of leachate
past a point fifty (50) feet outside of the solid waste boundary is prohibited
except as specified in the facility permit.
As noted during the
March 13 and June 17, 2008 inspections, Respondent did not properly control or
manage the leachate to prevent off-site migration. The leachate
collection sump installed in the northeast corner of Phase 3, Section 1 was not
being utilized to control the leachate. The leachate was
allowed to migrate past the solid waste boundary and discharge into the wetland
area adjacent to Boggs ditch.
o. Pursuant to 329 IAC 10-28-16 and Permit
Requirement D7, any discharge or disposal of collected leachate
must be in accordance with applicable local, state, and federal laws and
rules. Respondent shall manage surface
water as described in the application.
The drainage ditches and sedimentation basins shall be properly
maintained to prevent sedimentation from deposition off-site. Temporary run-off control structures shall be
constructed in areas which are unable to drain to the sedimentation basins.
As noted during the
March 13 and June 17, 2008 inspections, Respondent allowed the discharge of leachate from Phase 3, Section 1 of the landfill to the
drainage ditch. Respondent did not
properly manage runoff from the landfill.
p. Pursuant to 329 IAC 10-28-20 and
Requirement 3 of Permit Minor Modification, dated 12/2/2005, leachate collection systems must be operated in such a
manner as to comply with the design standards and plans specified in 329 IAC
10-26-1(b). Respondent shall install a leachate collection sump in the northeast corner of Section
1 of Phase 3. The location is depicted
on plan sheet Figure 3 titled "Proposed Base Grade Elevation for Section 1
of Phase III, Alternate Site Monofill
(Revised)," dated September 23, 2005.
Respondent shall remove and properly dispose of leachate
from the sump whenever a pumpable volume of leachate exists in the sump.
As noted during the
March 13 and June 17, 2008 inspections, Respondent allowed a discharge of leachate
from Phase 3 of the landfill to the drainage ditch. Respondent did not properly manage runoff
from the landfill.
q. Pursuant to Permit Requirement D11,
Respondent shall not cause a discharge of pollutants into waters of the United
States, including wetlands, that violates the Clean Water Act, including, but
not limited to, the requirements of the National Pollution Discharge
Elimination System ("NPDES").
As noted during the
March 13 and June 17, 2008 inspections, Respondent caused and allowed the
discharge of pollutants into the waters of the United States violating the
Clean Water Act and the rules adopted by the Water Pollution Control
Board. Leachate
from Phase 3, Section 1, is discharged through a drainage ditch into Boggs
Ditch and contaminated runoff from Phase 1 discharges though a pipe under State
Road 25. Additionally, surface water and
waste were observed on March 13 and June 17, 2008, leaving the property to the
south along an on-site road. On June 24,
2004, Respondent submitted a letter to the IDEM regarding a "No Exposure
Certification." The letter claims
that the facility has no discharge of storm water associated with industrial
activities and that storm water enters Boggs Ditch via sheet flow. The letter also states that there are no
other outfalls leaving the property.
r. Pursuant to Permit Requirement D12,
Respondent shall not cause the discharge of a nonpoint source of pollution into
the waters of the United States, including wetlands, that violates any
requirement of an area-wide or statewide water quality management plan that has
been approved under Section 208 or 319 of the Clean Water Act, as amended. Respondent shall comply with applicable
requirements of 327 IAC regarding storm water discharges.
As noted during the
March 13 and June 17, 2008 inspections, Respondent caused and allowed the
discharge of pollutants into the waters of the United States violating the
Clean Water Act and the rules adopted by the Water Pollution Control
Board. Leachate
from Phase 3, Section 1, is discharged through a drainage ditch into Boggs
Ditch and contaminated runoff from Phase 1 discharges though a pipe under State
Road 25. Additionally, surface water and
waste were observed leaving the property to the south along an on-site road. On June 24, 2004, Respondent submitted a
letter to the IDEM regarding a "No Exposure Certification." The letter claims that the facility has no
discharge of storm water associated with industrial activities and that storm
water enters Boggs Ditch via sheet flow.
The letter also states that there are no other outfalls leaving the
property.
Since the dates of
the investigation, Respondent has been in communication with IDEM's Office of
Water Quality ("OWQ") concerning wetlands and other water issues at
the Site.
8. Since the inspections, Respondent has
submitted the following items to IDEM for review:
a. 2009 Annual Storm water report,
submitted May, 2010;
b. 2010 Annual Storm water report,
submitted August 27, 2010;
c. Storm water Notice of Intent, submitted
July 2010;
d. Storm water Pollution Prevention Plan
“SWPPP,” submitted July 2010. The SWPPP
was deemed acceptable by IDEM in August, 2010;
e. Erosion Control Plan, submitted
September 2, 2010;
f. Dispersal Control Plan, submitted
September 2, 2010;
g. As-builts for
Phase 3, Section 1, embankment and sump;
h. Waste classification report for
Respondent’s Warsaw Foundry, submitted October 29, 2009 and approved by IDEM in
December 2009; and
i. Wetlands delineation report, submitted
on May 21, 2010. The Army Corp of
Engineers concurred with the wetlands delineation and issued its jurisdictional
determination on August 11, 2010.
9. Additionally, Respondent, during a
conference between the parties on September 2, 2010, notified IDEM of the
following items which have been implemented at the RWS, in part, to address the
violations cited above:
a. In order to stabilize the area (Phase
3, Section 1) addressed in Finding 7.i. above, Respondent has withdrawn the
collected water in the cell and constructed a water control structure with an
engineered structure with a combination sump built within the toe of the
embankment. The structure also includes
a valve to release collected water, and downstream storm water control
structures were developed and improved;
b. All waste has been temporarily diverted
from the RWS since March 2010 to present;
c. Fill areas have been stabilized with
either final cover or an intermediate cover since June 11, 2010;
d. Additional rock filtering structures
and control have been placed for Outfall 2;
e. All furniture present at the RWS as
stated in Paragraph 7.c. was removed from the RWS and properly disposed;
f. Boundary markers were installed at the
RWS for the fill boundary, phase boundary, and boundary of the permitted
facility;
g. Security and access control measures
limiting access to the RWS were implemented and improved;
h. Erosion control measures were
implemented through the final SWPPP plan;
i. On-site access roads were improved to
allow access to the disposal areas at the RWS and maintenance measures were
improved with respect to the on-site roads; and
j. Control measures to segregate contact
water and/or leachate from stormwater
runoff were installed and are being maintained.
10. In recognition of the settlement reached,
Respondent waives any right to administrative and judicial review of this
Agreed Order, except as necessary to enforce its terms.
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. Respondent shall comply with the rules
and permit conditions listed in the findings here and/or above at issue
according to the schedule set forth in this Agreed Order.
3. Within sixty (60) days of the Effective
Date, Respondent shall submit a permit modification application to address
changes made to the leachate and contact water
collection system in Phase 3, Section 1.
After the Effective Date, Respondent shall submit a permit modification
application whenever applicable.
4. Upon the Effective Date, Respondent
shall manage leachate and/or surface water to
prevent, to the extent practicable, all off-site discharges and deposition of leachate, sediments, and/or wastes from the RWS in
accordance with state and federal environmental laws and regulations.
5. Upon the Effective Date, Respondent
shall prevent, to the extent practicable, unauthorized discharges into waters
of the United States, including wetlands, in accordance with the Clean Water
Act, including, but not limited to, the requirements of the National Pollution
Discharge Elimination System.
6. Upon the Effective Date, Respondent
shall divert storm water and other surface water from the working face of the
fill area, to minimize surface water contact with waste and interference with
daily operations.
7.
Respondent
shall submit plans to demonstrate the integrity of the north and east sidewall
of Phase 3, Section 1 to IDEM for approval, prior to the placement of fill
abutting the north or east sidewalls in Phase 3, Section 1, unless alternative
plans are subsequently presented demonstrating that the north and east
sidewalls need not be maintained (e.g., closure of the RWS or proposed lateral
expansion).
8. Respondent shall perform quarterly RWS
inspections associated with the IDEM accepted SWPPP, the solid waste permit,
and the Erosion Control Plan (once approved) as required by Indiana law. Records documenting such inspections will be
available at the RWS for IDEM’s review.
Additionally, Respondent shall keep a log that indicates the amount of
water pumped from the RWS, and a log of maintenance performed on the erosion
control measures at the RWS. The first
inspection shall be performed within ninety (90) days of the Effective Date.
9. Upon approval by IDEM of Respondent’s
Erosion Control Plan, Respondent shall implement the Erosion Control Plan in
accordance with its terms, except for the cut in Phase 2 (addressed in Order
No. 19 below).
10. Upon the Effective Date, Respondent shall
provide application of a daily cover for the RWS until such time a dispersal
control plan is approved by the commissioner.
12. Upon the Effective Date, Respondent shall
ensure compliance with all applicable requirements of 327 IAC 15 including, but
not limited to, the SWPPP deemed acceptable by IDEM in August 2010.
.
13. Upon the Effective Date, Respondent shall
ensure compliance with Permit Requirement D5.
Specifically, Respondent shall control access to the RWS and minimize to
the extent possible, all unauthorized vehicular traffic and illegal dumping of
wastes.
14 Upon the Effective Date, Respondent
shall ensure compliance with 329 IAC 10-9-4.
Specifically, Respondent shall accept for disposal in the RWS only the
restricted waste types that have been determined according to the classification
criteria in 329 IAC 10-9-4 and approved by IDEM.
15. By August 2011, Respondent shall ensure compliance with 329 IAC 10-28-2 and
Permit Requirements E3 and E4.
Specifically, Respondent shall 1) ensure that on-site roads provide
access to disposal areas for vehicles utilizing these areas; 2) maintain
on-site roads in such a way as to minimize the tracking of mud or soil material
from the facility onto public highways or provide and maintain equipment to
remove any such mud or soil material that is tracked onto the public highways;
and 3) provide access to monitoring wells for vehicles driven by department
representatives.
16. Upon the Effective Date, Respondent shall
ensure compliance with Permit Requirement D3.
Specifically, Respondent shall ensure that it provides permanent visible
boundary markers which delineate the approved facility and waste boundaries and
shall maintain the markers for the life of the facility.
17. Upon the Effective Date, Respondent shall
ensure compliance with 329 IAC
10-28-6. Specifically, Respondent shall
ensure that salvaging on-site at the RWS is conducted only under the
supervision of the owner or operator and that they don't interfere with the
facility operations. Respondent shall
ensure that salvaged materials are stored in buildings or transportable
containers while awaiting removal from the facility. Alternative methods of storing salvaged
materials must have prior approval from the commissioner. Approval may be granted at the request of the
owner or operator if the owner or operator can demonstrate that the alternative
method will provide a comparable level of environmental protection.
18. Upon the Effective Date, Respondent shall
ensure compliance with 329 IAC 10-28-8.
Specifically, Respondent shall ensure that an updated quarterly plot
plan including all information required by the rule is maintained on-site at
the RWS. Respondent shall ensure that
the quarterly plot plan is updated on a quarterly basis.
19. Within one hundred eighty (180) days of
the Effective Date, Respondent shall complete field investigation of the
erosion cut on the north side of Phase 2.
Within sixty (60) days of completing the field investigation, Respondent
shall submit documentation to IDEM demonstrating the completion of any needed
repairs.
20. In the event IDEM determines that any
plan submitted by Respondent is deficient or otherwise unacceptable, Respondent
may (a) revise and resubmit the plan to IDEM in accordance with IDEM’s notice;
(b) schedule a meeting with IDEM to attempt to reach a mutually acceptable resolution
to IDEM’s concerns; or (c) appeal IDEM’s notice as a final order pursuant to
Ind. Code 4-21.5 et seq. either
within 18 days of receipt of an IDEM determination that a plan is deficient or
unacceptable or within 18 days of a meeting with IDEM under option (b) above in
which it is determined that it is not possible to reach a mutually acceptable
resolution of IDEM’s concerns. A final
approved plan shall mean the plan that (1) has been submitted to IDEM and approved;
(2) has been modified and approved by IDEM and not appealed; or (3) a plan that
has been appealed and fully adjudicated.
21. All submittals required by this Agreed
Order, unless Respondent is notified otherwise in writing by IDEM, shall be
sent to:
|
Brenda
Lepter, Enforcement Case Manager |
|
Office
of Land Quality – Mail Code 60-02L |
|
Indiana
Department of Environmental Management |
|
100
North Senate Avenue |
|
Indianapolis,
IN 46204-2251 |
All
communications and correspondence between IDEM and Respondent shall be directed
to:
|
Scott
Bleeks |
|
General
Manager |
|
Dalton
Corporation |
|
1900
Jefferson Street |
|
Warsaw,
IN 46580 |
|
|
|
David
Sipple, P.E. |
|
2121
Brooks Avenue |
|
Neenah,
WI 54956 |
|
Phone: (920) 729-3850 |
22. Respondent is assessed a civil penalty of
Thirty Thousand Dollars ($30,000). 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.
23. 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:
|
Failure to comply
with Order paragraph no. 3 |
$500 per week |
|
|
|
|
Failure to comply
with Order paragraph no. 8 |
$500 per week |
|
|
|
|
Failure to comply
with Order paragraph no. 9 |
$500 per week |
|
|
|
|
Failure to comply
with Order paragraph no. 11 |
$1,000 per week |
|
|
|
|
Failure to comply
with Order paragraph no. 15 |
$500 per week |
|
|
|
|
Failure to comply
with Order paragraph no. 19 |
$500 per week |
24. 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 a violation. 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 or
Indiana law, including, but not limited to, civil penalties pursuant to IC
13-30-4.
25. 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 |
|
Cashier
– Mail Code 50-10C |
|
100
North Senate Avenue |
|
Indianapolis,
IN 46204-2251 |
26. Force
majeure, for purposes of this Agreed Order, is defined as any event arising
from causes totally beyond the control and without fault of 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
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 (1) changed business or economic conditions; (2)
financial inability to complete the work required by this Agreed Order; or (3)
increases in costs to perform the work.
Respondent shall
notify IDEM by calling the case manager within three (3) business days and by
writing no later than seven (7) business days after it has knowledge of any
event which Respondent
contends is a force majeure. Such notification shall describe (1) the
anticipated length of the delay; (2) the cause or causes of the delay; (3) the
measures taken or to be taken by Respondent to minimize the delay; and (4) the
timetable by which these measures will be implemented. 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. 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.
27. This Agreed Order shall apply to and be
binding upon Respondent and 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.
28. In the event that any terms 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.
29. 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.
30. 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.
31. Complainant does not, by its approval, warrant or
aver in any manner that Respondent’s compliance with any aspect 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.
32. 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 dated September 30,
2008, or in the Findings of Fact of this Agreed Order.
33. Nothing in
this Agreed Order shall prevent IDEM or anyone acting on its behalf from communicating
with the 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 EPA or any other agency or entity.
34. This Agreed Order shall remain in effect
until IDEM issues a Resolution of Case letter to Respondent, which shall be
issued on Respondent’s completion of all terms and conditions of this Agreed
Order.
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TECHNICAL
RECOMMENDATION: |
RESPONDENT: |
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Department of
Environmental Management |
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By:
_________________________ |
By: _________________________ |
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Nancy L. Johnston,
Chief |
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Hazardous
Waste Section |
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Office of
Enforcement |
Printed:
______________________ |
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Title:
________________________ |
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Date: __________________ |
Date:
_______________________ |
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COUNSEL FOR COMPLAINANT: |
COUNSEL FOR RESPONDENT: |
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For the Department of
Environmental Management |
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By:
________________________ |
By:
________________________ |
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Deputy Attorney General |
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Date:
_______________________ |
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 |
__________________ |
, 20 |
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For the Commissioner: |
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Signed on May 9, 2011 |
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Bruce
H Palin |
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Assistant Commissioner |
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Office of Land Quality |
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