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BEFORE THE INDIANA DEPARTMENT OF |
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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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v. |
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Case No. 2009-18724-S |
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the indiana rail road
company, |
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Respondent. |
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AGREED
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. 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.
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 The Indiana Rail Road Company (“Respondent”), which owns and/or operates a
railroad including the portion running parallel to CR 525 E. in Dugger, Sullivan
County, Indiana (“Site”).
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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Thomas G Hoback, President &
Registered Agent |
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The Indiana Rail Road Company |
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5.
During
an investigation including field response conducted on July 8, 2009 by a
representative of IDEM, the following violations were found:
a. Pursuant to 327 IAC 2-6.1-7(3), 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, act as soon as possible, but within
two (2) hours of discovery, communicate a spill report to the Department of
Environmental Management, Office of Land Quality, Emergency Response Section:
Area Code 1-888-233-7745 for in-state calls (toll free), (317) 233-7745 for
out-of state calls. If new or updated
spill report information becomes known that indicates a significant increase in
the likelihood of damage to the waters of the state, the responsible party
shall notify the department as soon as possible but within two (2) hours of the
time the new or updated information becomes known.
As noted during the
investigation, Respondent failed to report to IDEM within two (2) hours of discovery
of the spill of potash to the soil and surface waters of the state. Twenty one (21) rail cars containing potash
derailed on July 7, 2009 resulting in a spill of an undetermined amount of
potash. The potash was transported and /or stored by Respondent and shipped by
Mosaic Crop Nutrition, LLC.
b. Pursuant to 327 IAC 2-6.1-7(1), 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.
As noted during the
investigation, Respondent did not take actions to physically contain the spill
until July 9, 2009. However, Respondent did take actions on July 7 and July 8,
2009 to begin coordinating containment measures.
c. Pursuant
to 327 IAC 2-6.1-7(2), 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, undertake or cause others to undertake activities
needed to accomplish a spill response.
As noted during the investigation, Respondent
did not physically undertake activities needed to accomplish a spill response
until July 9, 2009. Respondent did take actions on July 7 and July 8, 2009 to
organize activities necessary to accomplish spill response.
d. Pursuant to 327 IAC 2-1-6(a)(1), all
surface 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, 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, humans; and which are in concentrations or
combinations that will cause or contribute to the growth of algae to such
degree as to create a nuisance, be unsightly, or otherwise impair the
designated uses.
As
noted during the investigation, Respondent allowed an undetermined amount of
potash to be deposited into an unnamed ditch, a wetland and Big Branch Creek,
waters of the state. The origin of the
spill was a derailment of twenty one (21) rail cars containing potash which was
transported and /or stored by Respondent and shipped by Mosaic Crop Nutrition,
LLC.
e. Pursuant to 327 IAC
2-1-2(1), for all waters of the state, existing beneficial uses shall be maintained
and protected. No degradation of water
quality shall be permitted which would
interfere with or become injurious to existing and potential uses.
The release of potash caused the degradation of wetland, introduced objectionable
deposits, failed to maintain and protect existing beneficial uses, and/or
interfered with the existing and potential uses of the wetland at the Site, in
violation of IAC 2-1-2(1).
6. 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.
Respondent
shall comply with 327 IAC 2-6.1-7(3), 327 IAC 2-6.1-7(1), 327 IAC 2-6.1-7(2), 327
IAC 2-1-6(a)(1), 327 IAC 2-1-2(1).
3.
Within
ten (10) days of the Effective Date, Respondent shall submit to IDEM a
narrative spill report that was previously requested via certified letter and
signed for by the Indiana Rail Road Company on August 20, 2009.
4.
Within
thirty (30) days of the Effective Date, Respondent shall submit an After-the
Fact Individual 401 Water Quality Certification Application for the proposed
project. This permit application shall
encompass all 401 aspects of the clean-up efforts. A copy of the Section 401 Water Quality
Certification application form which includes all list of required information
is included as Attachment A.
5.
On
September 2, 2009, August Mack Environmental submitted a Ditch Completion Plan
on behalf of Respondent. However, the
Ditch Completion was inadequate and must be revised. Within thirty (30) days of
the Effective Date, Respondent shall submit a revised Ditch Completion Plan
which must include two conceptual ditch cross-sections, pre-impacts contours and
proposed contours of the proposed alternative ditch line. A plan view drawing
showing the general layout of the proposed alternative ditch line shall be
submitted. The plan shall be subject to the approval of IDEM. If IDEM deems the plan to be inadequate, a
revised plan shall be submitted within twenty (20) 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, IDEM will request further modification of the plan as
necessary to meet requirements, and would require re-submittal of the plan by a
specific date.
a.
Within
thirty (30) days of the Effective Date, Respondent shall submit pre and post
contours of the proposed stream work, and a description of how and where all
materials including excess spoil, and any recovered product will be managed
onsite. The proposed stream work and/or the redirection of a tributary of Big
Branch Creek shall be subject to the approval of IDNR and/or IDEM. If the plan is deemed inadequate, a revised
plan shall be submitted within twenty (20) days of receipt of notice from IDEM
of the inadequacies thereof. If after
submission of the first revised plan, IDNR and/or IDEM still finds the plan to
be inadequate, then IDEM will request further modification of the plan as
necessary to meet requirements, and would require re-submittal of the plan by a
specific date.
b.
Within
thirty (30) days of the Effective Date, Respondent shall provide information on
the staging area, access points, and the construction limits of the project.
All of the proposed remedial projects shall be submitted to IDEM for approval
including wetland delineation plan.
c.
Within
thirty (30) days of the Effective Date, Respondent shall provide a detailed
planting plan for the replacement of the woody riparian corridor along the
stream as required by the Indiana Department of Natural Resources (IDNR). An approved IDNR’s Woody Riparian Vegetation
planting list is included as Attachment B. The planting plan shall be subject to the
approval of IDNR. If IDNR and/or IDEM
deem the plan to be inadequate, a revised plan shall be submitted within twenty
(20) days of receipt of notice from IDEM of the inadequacies thereof. If after submission of the first revised
plan, IDNR and/ or IDEM still finds the plan to be inadequate, then IDEM will
request further modification of the plan as necessary to meet requirements, and
would require re-submittal of the plan by a specific date. Order paragraph 5(c) herein, shall become null
and void if DNR and/or IDEM verify that the recovery of vegetation at the Site is
adequate and sustainable.
d.
Respondent
shall apply and obtain all applicable permits from IDNR before commencing
vegetation replacement.
6.
Following
the completion of the proposed east alternative drainage ditch, Respondent
shall sample surface water in the east alternative drainage ditch monthly until
three (3) consecutive months of sample results demonstrate that chloride levels
are below Indiana Water Quality Standards as provided in 327 IAC 2-1-6.
7.
Within
fifteen (15) days of obtaining the analytical results required in Order
paragraph 6 above, Respondent shall submit said results to IDEM.
8.
Within
thirty (30) days of the Effective Date, Respondent shall submit a plan to IDEM
for review which describes sampling, evaluation, and follow-up which will be
conducted to ensure that contamination existing in the area west of the ballast
does not cause further degradation to the environment and/or discharge
contaminants above Indiana Water Quality Standards to Big Branch Creek.
9.
Pursuant
to IC 13-25-6-6, Respondent shall reimburse IDEM for the value of time and
effort expended in the investigation of the spill event. IDEM has determined this amount to be Three Thousand
Nine Hundred Seventy Six Dollars and Ninety Seven Cents ($3,976.97). This dollar amount is strictly for the
purpose of cost recovery. Payment shall
be made to the Hazardous Substance Response Trust Fund within thirty (30) days
of the Effective Date 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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10.
All
submittals required by this Agreed Order, unless Respondent is notified
otherwise in writing by IDEM, shall be sent to:
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Emmanuel Chike Okeke, Enforcement
Case Manager |
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Office of Land Quality – Mail Code
60-02L |
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Indiana Department of
Environmental Management |
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11.
Respondent
is assessed a civil penalty of Sixteen Thousand Two Hundred and Fifty Dollars ($16,250). 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.
12.
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 |
Penalty |
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Order
# 3 Failure to submit narrative spill
report |
$250
per day, submittal is late |
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Order
#4 Failure to submit After-the Fact
Individual 401 |
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water Quality Certification Application |
$100
per day, submittal is late |
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Order
#5 Failure to submit revised Ditch
Completion Plan |
$100
per day, submittal is late |
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Order
#5(a) Failure to submit post contours
of proposed |
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stream work |
$100
per day submittal is late |
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Order
#5(c) Failure to submit planting plan
for the |
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Replacement of the woody riparian corridor |
$100
per day, submittal is late |
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Order
#7 Failure to submit analytical result
of chloride |
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levels |
$250
per day, submittal is late |
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Order
#8 Failure to submit a plan describing
sampling |
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evaluation, and follow-ups to address |
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Contaminations in the area west of ballast |
$250
per day, submittal is late |
13.
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.
14.
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:
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Indiana Department of
Environmental Management |
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Cashier – Mail Code 50-10C |
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15.
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.
16.
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.
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 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.
19.
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 Respondent’s efforts to comply with this Agreed Order.
20.
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.
21.
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.
22.
This
Agreed Order shall remain in effect until IDEM issues a Resolution of Case
letter to Respondent.
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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
Johnston, Section Chief |
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Enforcement
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Printed: ______________________ |
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Office of Land Quality |
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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 |
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For the
Commissioner: |
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Signed,
August 6, 2010__ |
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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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