STATE OF INDIANA	)	SS:	BEFORE THE INDIANA DEPARTMENT OF
	)		ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION	)
COMMISSIONER OF THE DEPARTMENT		)
OF ENVIRONMENTAL MANAGEMENT,		)
		)
Complainant,		)
		)
v.		)	Case No. 2011-19921-W
		)
Beneficial reuse Management, llc,		)
		)
Respondent.		)

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 (IDEM), a department of the State of Indiana created by Indiana Code (IC) 13-13-1-1.

2. Respondent is Beneficial Reuse Management, LLC (Respondent), which is the responsible party for the foundry byproduct placed at the Perry County Fairgrounds fill project located at State Road 66, Tell City, Perry County, Indiana (the Site).

3. IDEM has jurisdiction over the parties and the subject matter of this action.

4. Respondent waives issuance of a Notice of Violation and to the settlement period of sixty days as provided for by IC 13-30-3-3.

5. Respondent is an environmental services firm managing environmental beneficial reuse of high volume industrial by-products. Respondent partnered with the ThyssenKrupp Waupaca ductile iron foundry at 9856 St Rd 66, Tell City, Indiana to have several tri-axle truck loads of foundry sand placed as fill in an approximate five acre area at the Perry County Fairgrounds to raise the surface level. Phase I of the area has a discharge pipe. Phase III of the project has a foundry by-product contact water basin and a stormwater retention basin.

6. During an investigation conducted by representatives of IDEM, the following violations were found:

Pursuant to 327 IAC 5-2-2, any discharge of pollutants into the waters of the state as a point source discharge is prohibited unless in conformity with a valid NPDES permit obtained prior to the discharge. During IDEM inspections of the Site on June 17, 2010, and June 28, 2010, IDEM noted discharge from a Phase III retention pond overflow pipe containing foundry sand sediment from a fill project managed by Respondent. The discharge into an unnamed tributary of the Ohio River was without a valid NPDES permit obtained prior to the discharge, in violation of 327 IAC 5-2-2.

Pursuant to IC 13-30-2-1, 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 in any form which causes or would cause pollution which violates rules, standards, or discharge or emission requirements adopted by the appropriate board pursuant to this title. Respondent discharged foundry sand contaminated water into an unnamed tributary to the Ohio River at the Perry County Fairgrounds, which caused or would cause pollution that violated 327 IAC 5-2-2 (a rule adopted by the Water Pollution Control Board), in violation of IC 13-30-2-1.

7. 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 statute and rule listed in the findings above at issue.

3. Respondent shall abide with the following conditions for any discharge of water from the two basins associated with Phase 3 at the Site:

a. The discharge cannot cause a violation of narrative Water Quality Criteria including: 327 IAC 2-1-6(a): 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:

i. that will settle to form putrescent or otherwise objectionable deposits;

ii. that are in amounts sufficient to be unsightly or deleterious;

iii. that produce color, visible oil sheen, odor, or other conditions in such degree as to create a nuisance;

iv. which are in amounts sufficient to be acutely toxic to, or to otherwise severely injure or kill aquatic life, other animals, plants, or humans; and

v. which are in concentrations or combinations that will cause or contribute to the growth of aquatic plants or algae to such degree as to create a nuisance, be unsightly, or otherwise impair the designated uses.

b. The discharge shall not exceed 6,000 gallons per hour, unless IDEM gives written permission to do so; anytime Respondent is discharging, Respondent shall arrange to have an attendant on-site assigned to assure compliance;

c. The discharge shall not exceed 10 hours per calendar day, unless IDEM gives written permission to do so;

d. The discharge shall be treated through a minimum of a 0.45 micron filter before being discharged to waters of the state;

e. The discharge shall be monitored and records maintained to ensure compliance with the above requirements;

f. Precautions shall be taken during the withdrawal of water from the basins, prior to treatment, to reduce the risk of sediment disturbance.

4. Within 30 days of the Effective Date, Respondent shall submit a Compliance Plan, for IDEM approval, to address the control and/or treatment of the discharge of pollutants from the pipe in Phase 1.

5. Within 30 days of the Effective Date, Respondent shall submit a Stormwater Pollution Prevention Plan (SWPPP) to IDEM (Attention Ronald Boehm, Stormwater Specialist) for review and comment to address the closure of Phase 3. (completed April 20, 2011).

6. In the event that IDEM determines any plan to be deficient, Respondent shall, upon written notice by IDEM, revise and resubmit the plan, in accordance with IDEM’s written notice.

7. Any plan required pursuant to this Agreed Order shall be incorporated into the Agreed Order and shall be deemed an enforceable part thereof. Respondent, upon receipt of written concurrence from IDEM, shall immediately implement the plan and adhere to the schedule contained therein.

8. Respondent shall notify IDEM, in writing, within 10 days of completion of each action or milestone contained in any plan approved by IDEM pursuant to this Agreed Order. The notification shall include a description of the action completed and the date it was completed.

9. Within 60 days of the Effective Date, Respondent shall arrange for application submittal for IDEM 401 Water Quality Certification (attention: David Carr, IDEM 401 Project Manager).

10. All submittals required by this Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall be sent to:

Paul Cluxton, Enforcement Case Manager

Indiana Department of Environmental Management

Office of Water Quality – Mail Code 60-02W

100 North Senate Avenue, Room 1255

Indianapolis, IN 46204-2251

11. Respondent is assessed a civil penalty of Ten Thousand Dollars ($10,000). Said penalty amount shall be due and payable to the Environmental Management Special Fund within 30 days of the Effective Date. In the event that the civil penalty is not paid within 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:

Paragraph	Violation	Stipulated Penalty
3 a	Failure to comply with the narrative Water Quality Standards	$1,000 per incident/day
3 b,c,d,e,f	Failure to comply with the specific conditions.	$1,000 per incident/day
4	Failure to submit Compliance Plan for control of water at Phase 1 area within the time required.	$250 per each week or part thereof late
5	Failure to submit the SWPPP within the time required.	$250 per each week or part thereof late
6	Failure to revise and resubmit a Plan, if requested by IDEM.	$250 per each week or part thereof late
7	Failure to implement plan as per the plan schedule.	$250 per each week or part thereof late
8	Failure to provide IDEM notification of completion of milestone in the plan schedule, within the time required.	$250 per each week or part thereof late
9	Failure to submit the application within the time required.	$250 per each week or part thereof late

13. Stipulated penalties shall be due and payable within 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:

Indiana Department of Environmental Management

Cashier – Mail Code 50-10C

100 North Senate Avenue

Indianapolis, IN 46204-2251

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 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 Respondent has complied with all terms and conditions of Order Paragraph Nos. 3 through 14 and IDEM issues a Resolution of Case letter.

REMAINDER OF PAGE INTENTIONALLY LEFT BLANK

TECHNICAL RECOMMENDATION:		RESPONDENT:
Department of Environmental Management		Beneficial Reuse Management, LLC
By: ________________________		By: ________________________
	Mark W. Stanifer, Chief
	Water Enforcement Section	Printed: ______________________
Office of Water Quality
		Title: ________________________
Date: __________________		Date: _______________________
COUNSEL FOR COMPLAINANT:		COUNSEL FOR RESPONDENT:
For the Department of Environmental Management
By: ____________________		By: ______________________
	Deputy Attorney General
Date: _______________________		Date: ______________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS _____ DAY OF ___________________, 20___.
		For the Commissioner:
		Signed on April 29, 2011
		Bruno Pigott
		Assistant Commissioner
		Office of Water Quality