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. 2017-24855-Q

 

)

 

C.D.S. Mixers & Parts, 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 Indiana Code (IC) 13-30-3-3, entry into the terms of this Agreed Order does not constitute an admission of any violation contained herein.  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 IC 13-13-1-1.

 

2.             Respondent is C.D.S. Mixers & Parts, LLC (Respondent), which owns and operates a salvage yard where they store and sell used and new cement mixers and parts, located at 2525 Western Ave, in Plymouth, Marshall County, Indiana (the Site).

 

3.             IDEM has jurisdiction over the parties and the subject matter of this action pursuant to IC 13-30-3.

 

4.             Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation (NOV) via Certified Mail to Carl Stockberger, Registered Agent for C.D.S. Mixers & Parts, LLC at 7991 Lilac Road, Plymouth, IN 46563.

 

5.             During an investigation conducted by a representative of IDEM, violations were found, as described below.

 

6.             Pursuant to IC 13-18-4-5, a person may not throw, run, drain, or otherwise dispose; or cause, permit, or suffer to be thrown, run, drained, allowed to seep, or otherwise disposed; into any of the streams or waters of Indiana any organic or inorganic matter that causes or contributes to a polluted condition of any of the streams or waters of Indiana.

 

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 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.

 

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 that do any of the following:

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.

 

During the inspections on August 22, 2017, October 4, 2017, and December 19, 2017, IDEM staff observed and documented land disturbing activities in an area greater than one acre and the physical placement of earthen fill material and objectionable deposits into 2.22 acres of onsite wetland. Respondent’s discharge of fill material into a water of the state without authorization is in violation of IC 13-18-4-5, IC 13-30-2-1(1), and 327 IAC 2-1-6(a)(1).

 

7.             Pursuant to 327 IAC 15-5-2, the requirements for storm water discharges from construction activities apply to all persons who meet the criteria under 327 IAC 15-5-2(a)(1)-(3).

 

Pursuant to 327 IAC 15-5-2(d), the project site owner has the following responsibilities:

a.    Complete and submit a notice of intent (NOI) letter.

b.    Complete and submit a construction plan (CP) in accordance with section 6 of this rule.

c.    Ensure compliance with this rule during:

                                        i.         The construction activity; and

                                       ii.         Implementation of the construction plan.

d.    Notify the department with a notice of termination (NOT) letter.

e.    Ensure that all persons engaging in construction activities on a permitted project site comply with the applicable requirements of this rule and the approved construction plan.

 

Pursuant to 327 IAC 15-5-6(b)(1), for a project site where the proposed land disturbance is one (1) acre or more as determined under section 2 of this rule, a construction plan must be submitted prior to the initiation of any land disturbing activities and sent to the appropriate Soil and Water Conservation Districts (SWCD), or other entity designated by the department, for review and verification that the plan meets the requirements of the rule.

 

Pursuant to 327 IAC 15-5-6.5(a), the project site owner shall develop a set of construction plans.  Storm water quality measures included in the plan must achieve the minimum project site requirements specified in 327 IAC 15-5-7, and must include the information set forth in 327 IAC 15-5-6.5(a).

 

Pursuant to 327 IAC 15-5-6(a), after the project site owner has received notification from the reviewing agency that the construction plans meet the requirements of the rule or the review period outlined in subsection (b)(3) has expired, all NOI letter information required under 327 IAC 15-5-5 shall be submitted to the commissioner at least forty-eight (48) hours prior to the initiation of land disturbing activities at the site.  A copy of the completed NOI letter must also be submitted to all SWCDs, or other entity designated by the department, where the land disturbing activities are to occur.  If the NOI letter is determined to be deficient, the project site owner must address the deficient items and submit an amended NOI letter to the commissioner.

 

Pursuant to 327 IAC 15-5-5, a complete NOI letter submitted by the project site owner must contain the information set forth in this rule.

 

Based on inspections conducted by IDEM staff on August 22, 2017, October 4, 2017, and December 19, 2017, and a review of IDEM records, IDEM determined that Respondent had caused a disturbance greater than one acre. Respondent failed to develop and submit a construction plan for the Site, failed to submit a NOI letter to IDEM prior to initiating land disturbing activities at the Site, and failed to submit a copy of the NOI letter to the Marshall County SWCD where the land disturbing activities occurred, all of which are in violation of 327 IAC 15-5-2(d), 327 IAC 15-5-5, 327 IAC 15-5-6(a), 327 IAC 15-5-6(b)(1), and 327 IAC 15-5-6.5(a).

 

8.             Pursuant to 327 IAC 15-5-7(b)(1), (15), a project site owner shall meet the following requirements:

a.             Sediment-laden water which otherwise would flow from the project site shall be treated by erosion and sediment control measures appropriate to minimize sedimentation.

b.             Natural features, including wetlands, shall be protected from pollutants associated with storm water run-off.

 

During the inspections on August 22, 2017, October 4, 2017, and December 19, 2017, IDEM staff determined Respondent failed to minimize sedimentation and protect natural features, such as the wetland, on and off the Site, in violation of 327 IAC 15-5-7(b)(1), (15).

 

9.             Pursuant to 327 IAC 15-6-2(a)(5)(E), facilities involved in the recycling of materials, including metal scrap yard, battery re-claimers, salvage yards, and automobile junkyards, including those classified under the following SIC codes:

a.             5015 (motor vehicles parts, used).

b.             5093 (scrap and waste materials).

 

Must obtain permit coverage for operations requiring an industrial storm water permit based on SIC code 5015 and/or 5093, and on site operations.

 

Based on a review of IDEM records, IDEM determined that Respondent has failed to obtain permit coverage for operations requiring an industrial storm water permit, in violation of 327 IAC 15-6-2(a)(5)(E).

 

10.         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 adopted by Complainant or Complainant’s delegate (as evidenced by signature), and the adopted Agreed Order has been received by Respondent.  This Agreed Order shall have no force or effect until the Effective Date.  In addition to addressing the violations cited in Paragraphs 6 through 9 of the Findings of Fact above, this Agreed Order also addresses any additional violations of these same rules that may have occurred subsequent to the issuance of the NOV and prior to the Effective Date.

 

2.             Respondent shall comply with the rules and statutes listed in the findings above at issue.

 

3.             Respondent shall cease and desist further land disturbing activities in all waters of the state until proper authorization has been granted.

 

4.             Options for resolving this matter are, (1) restore the Site in question by removing the fill and replanting the wetland or (2) apply for and receive an after-the-fact (ATF) certification from IDEM for activities at the Site.  Any formal review of an ATF permit application may result in a permit denial and subsequent order for the area in question to be restored. Within thirty (30) days of the effective date, Respondent shall provide written notice of the choice between restoration and ATF certification.

 

5.             If restoration is chosen, Respondent must submit to IDEM a restoration plan and schedule within sixty (60) days from the Effective Date for formal IDEM review and approval, and must include, at a minimum, the following information:

 

a.             Appropriate figures, to scale, with landmarks and dimensions detailing the proposed restoration efforts.

b.             Activities to be undertaken in your restoration efforts. Respondent must provide written information in narrative format on how the fill will be removed and erosion control measures to be installed during fill removal.

c.             A schedule of implementation with start and end dates for restoration activities.

d.             Information on replanting. The area must be replanted with appropriate native vegetation. You must provide information on the species/quantities to be replanted.

e.             Information on the permanent disposal location of the removed fill material.

 

The restoration plan is subject to IDEM approval.  In the event IDEM determines the plan submitted by Respondent is deficient or otherwise unacceptable, Respondent shall revise and resubmit the plan to IDEM in accordance with IDEM’s notice.  Respondent shall not commence restoration work until IDEM has approved the restoration plan.

 

Respondent, upon receipt of written notification from IDEM, shall immediately implement the approved restoration plan and adhere to the milestone dates therein.  The approved restoration plan shall be incorporated into the Agreed Order and shall be deemed an enforceable part thereof.  Failure by Respondent to submit the restoration plan by the specified date, or to meet any of the milestones in the approved plan, will subject Respondent to stipulated penalties as described below.

 

6.             If Respondent chooses to apply for ATF certification, the application and a complete mitigation plan must be submitted within sixty (60) days from the Effective Date for IDEM review and approval.

 

The ATF certification application and mitigation plan are subject to IDEM approval. In the event IDEM determines the plan submitted by Respondent is deficient or otherwise unacceptable, Respondent shall revise and resubmit the plan to IDEM in accordance with IDEM’s notice. After three submissions of such plan by Respondent, IDEM may seek civil enforcement of this Agreed Order.

 

Respondent, upon receipt of written notification from IDEM of ATF certification approval, shall immediately implement the approved plan and adhere to the milestone dates therein. The approved plan shall be incorporated into the Agreed Order and shall be deemed an enforceable part thereof. Failure by Respondent to submit any plan by the specified date, or to meet any of the milestones in the approved plan, will subject Respondent to stipulated penalties as described below.

 

7.             Within 30 days of the Effective Date, Respondent shall submit a CP and a NOI to obtain the Rule 5 Permit coverage under 327 IAC 15-5. Respondent shall mail the CP and the original NOI document to IDEM along with the NOI application fee ($100) payment, and the required proof of publication to notify the public of the project. The proof of publication must appear in the local newspaper.

 

8.             Within 30 days of the Effective Date, Respondent shall install erosion and sediment control measures to minimize sediment discharges into waters of the state and/or off-site properties.

 

9.             Prior to initiating any additional land disturbing activities on the Site, Respondent shall again implement the erosion and sediment control measures necessary to minimize sediment discharges into waters of the state and/or off-site properties as documented in the Rule 5 permit and CP. Once the CP has been submitted and accepted by IDEM, Respondent shall implement all measures contained in the CP for the Site, and any other erosion and sediment control measures necessary to:

 

a.             Ensure compliance with the requirements of 327 IAC 15-5-7 and 327 IAC 2-1-6(a)(1); and

b.             Prevent sediment from leaving the Site and entering or threatening to enter waters of the state.

 

All erosion and sediment control measures shall be properly constructed, and adequate in size and location to control the area of run-off and to prevent off-site sedimentation.  This effort should include measures identified in the on-site evaluations and those necessary to bring the site into compliance. All measures must be implemented and maintained in accordance with the methods outlined in the Indiana Storm Water Quality Manual.  This manual is currently available from the IDEM, Storm Water program, and can be accessed via the internet at http://www.in.gov/idem/stormwater/2363.htm.  Respondent will be deemed to have satisfied the requirements of this paragraph when IDEM verifies that adequate storm water management principles and erosion and sediment control measures have been implemented, and Respondent has no “unsatisfactory” ratings in inspections from IDEM or the City of Plymouth MS4 for one year, or until the project termination conditions of 327 IAC 15-5-8 have been met at the site and a notice of termination (“NOT”) has been submitted and accepted.

 

10.         Within 30 days of the Effective Date, Respondent shall submit a NOI, to obtain the Rule 6 Permit coverage under 327 IAC 15-6. Respondent shall mail the original NOI document to IDEM along with the NOI application fee ($50) payment, and the required proof of publication that is required to be published in the local newspaper.

 

11.         In the event that IDEM determines that either the Rule 5 or Rule 6 NOI submitted by Respondent is deficient or otherwise unacceptable, Respondent shall revise and resubmit the NOI to IDEM, in accordance with IDEM’s notice(s) in order to obtain the appropriate permit coverage for the Site.

 

12.         For the purposes of this Agreed Order, within 90 days of the Effective Date, Respondent shall develop and implement a Storm Water Pollution Prevention Plan (SWP3), as part of the Rule 6 Permit, which complies with 327 IAC 15-6-7, and submit to IDEM a SWP3 certification checklist (State Form 51287). The SWP3 must accompany the SWP3 certification checklist.

 

In the event that substantial changes are made at the Site or to the SWP3 since its inception, Respondent shall submit to IDEM a revised SWP3 certification checklist within 180 days of the Effective Date.

 

13.         Within 90 days of obtaining the Rule 6 Permit, Respondent shall begin conducting and documenting quarterly inspections, at a minimum, of the storm water management measures and storm water run-off conveyances.  Inspections must be documented and either contained in, or have the on-site record keeping location referenced in, the SWP3, as required by 327 IAC 15-6-7(c)(1)(D).

 

14.         No later than 365 days (one year) after the Rule 6 Permit has been issued by IDEM, and for the purposes of this Agreed Order, on the first measurable storm event, as defined by 327 IAC 15-6-4(11), Respondent shall sample and analyze all storm water discharges.  Sampling shall include, at a minimum, the eight (8) parameters required by 327 IAC 15-6-7.3(a)(1).  If it is determined that the sampling data results do not satisfy the monitoring requirements for run-off from the Site, IDEM may require additional sampling, in accordance with 327 IAC 15-6-7.3(a)(2).

 

Upon completion of the provisions of this Agreed Order, Respondent shall continue to sample and analyze the discharge from the storm water annually thereafter, as required by 327 IAC 15-6-7.3(1), which complies with all monitoring requirements of 327 IAC 15-6-7.3.

 

15.         After IDEM has issued the Rule 6 Permit, and within 365 days (one year) of the initial NOI submittal date, Respondent shall submit an Annual Report.  Subsequent Annual Reports shall be provided no later than 365 days (one year) from the previous report in years two (2) through five (5), as required by 327 IAC 15-6-7.5.  Annual Reports must contain the following information:

 

a.             Any changes to the original NOI letter.

b.             Any changes to the facility, the facility’s operations, or industrial activities.

c.             During the second through fifth years of permit coverage, a copy of the comparison of all sampling data results included in the facility’s SWP3, and all other data required under section 7(b)(9) of this rule.

d.             Any additional best management practices (BMPs) implemented or corrective measures taken, as a result of sampling data results.

 

16.         Within 10 days of sampling the storm water discharge during the first measurable storm event, Respondent shall complete and submit a storm water discharge monitoring report (State Form 53590) to IDEM in conjunction with laboratory analysis, and all chain of custody documentation, as required by 327 IAC 15-6-7.3(b)(2).  If Respondent fails to sample as required during the first measureable storm event, Respondent shall sample, as required, during the next measureable storm event, and shall be liable for stipulated penalties as set forth below for each missed measureable storm event until Respondent samples and analyzes the storm water discharge, as required.

 

17.         Within 90 days of the Effective Date, Respondent shall develop and implement a written preventative maintenance program, as required by 327 IAC 15-6-7(c)(1), as well as proof of implementation, for areas of the facility that generate storm water discharges and have a reasonable potential for storm water exposure to pollutants, in order to minimize storm water exposure to pollutants.  The preventative maintenance program shall include, but not be limited to, the following provisions:

 

a.    Implementation of good housekeeping practices to ensure the facility will be operated in a clean and orderly manner and that pollutants will not have the potential to be exposed to storm water via vehicular tracking, truck parts containing oil, battery acid, and other contaminants exposed to storm water or other means.

b.    Installation and maintenance of storm water management measures that include, but are not limited to catch basins, and oil and water separators.

 

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

 

Brandi Collignon, Enforcement Case Manager

Office of Water Quality – IGCN 1255

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

19.         Respondent is assessed and agrees to pay a civil penalty of Five Thousand Eight Hundred Eighty Dollars ($5,880). Said penalty amount shall be due and payable to the “Environmental Management Special Fund” within 30 days of the Effective Date; the 30th day being a “Due Date.”

 

20.         In the event the terms and conditions of the following paragraphs are violated, IDEM may assess and Respondent shall pay the corresponding stipulated penalty:

 

Paragraph

Violation

Stipulated Penalty

3

Failure to cease further activity in waters of the state.

$500 per event

4

Failure to provide written notice of choice between restoration and ATF mitigation within 30 days of the Effective Date.

$500 per week late

5

Failure to submit restoration plan within 60 days of the Effective Date, or a revised restoration plan, if necessary, within the given time.

$500 per week late

5

Failure to implement the approved restoration plan and/or adhere to milestone dates.

$500 per week late

6

Failure to apply for an ATF certification within 60 days of the Effective Date, or a revised mitigation plan, if necessary, within the given time.

$500 per week late

6

Failure to implement the approved mitigation plan and/or adhere to milestone dates.

$500 per week late

7

Failure to submit a CP and NOI with fee, for the Rule 5 Permit coverage within 30 days of the Effective Date.

$500 per week late

8

Failure to install erosion and sediment control measures within 30 days of the Effective Date.

$500 per week late

9

Failure to maintain the implementation of erosion and sediment control measures contained in the construction plan for the Site.

$500 per violation

10

Failure to submit an NOI with fee, for the Rule 6 Permit coverage within 30 days of the Effective Date.

$500 per week late

11

Failure to revise and resubmit the Rule 5 or Rule 6 NOI if necessary, within the given time.

$500 per week late

12

Failure to develop and implement a SWP3 within 90 days of the Effective Date.

$500 per week late

12

Failure to submit a revised SWP3 certification checklist if necessary, within 180 days of the Effective Date.

$500 per week late

13

Failure to conduct, document, and file on site, quarterly inspections within 90 days of obtaining the Rule 6 Permit.

$500 per violation

14

Failure to sample and analyze storm water discharge annually starting no later than 365 days after obtaining the Rule 6 Permit.

$500 per violation

15

Failure to submit Annual Reports for the Rule 6 Permit, within the given time frames.

$500 per week late

16

Failure to submit a storm water discharge monitoring report within 10 days of the first measurable storm event.

$500 per week late

17

Failure to develop and implement a written preventative maintenance program within 90 days of the Effective Date.

$500 per week late

 

21.         Stipulated penalties shall be due and payable no later than the 30th day after Respondent receives written notice that IDEM has determined a stipulated penalty is due, the 30th day being a “Due Date.”  IDEM may notify Respondent at any time that a stipulated penalty is due.  Failure to notify Respondent in writing in a timely manner of a stipulated penalty assessment shall not waive IDEM’s right to collect such stipulated penalty or preclude IDEM from seeking additional relief against Respondent for violation of this Agreed Order.  Neither assessment nor payment of stipulated penalties shall preclude IDEM from seeking additional relief against Respondent for a violation of this Agreed Order.  Such additional relief includes any remedies or sanctions available pursuant to Indiana law, including, but not limited to, civil penalties pursuant to IC 13-30-4.

 

22.         Civil and stipulated penalties are payable by check to the “Environmental Management Special Fund.”  Checks shall include the Case Number 2017-24855-Q of this action and shall be mailed to:

 

Office of Legal Counsel

Indiana Department of Environmental Management

IGCN, Rm N1307

100 North Senate Avenue

Indianapolis, IN 46204

 

23.         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.

 

24.         In the event that the monies due to IDEM pursuant to this Agreed Order are not paid on or before their Due Date, Respondent shall pay interest on the unpaid balance and any accrued interest at the rate established by IC 24-4.6-1.  The interest shall be computed as having accrued from the Due Date until the date that Respondent pays any unpaid balance.  The interest shall continue to accrue on the first of each month until the civil penalty and any interest accrued are paid in full.  Such interest shall be payable to the Environmental Management Special Fund, and shall be payable to IDEM in the manner specified above.

 

25.         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.

 

26.         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.

 

27.         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.

 

28.         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.

 

29.         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.

 

30.         Nothing in this Agreed Order shall prevent IDEM [or anyone acting on its behalf] from communicating with the United States Environmental Protection Agency (EPA) or any other agency or entity about any matters relating to this enforcement action.  IDEM or anyone acting on its behalf shall not be held liable for any costs or penalties Respondent may incur as a result of such communications with EPA or any other agency or entity.

 

31.         This Agreed Order shall remain in effect until Respondent has complied with all terms and conditions of this Agreed Order and IDEM issues a Resolution of Case (close out) letter to Respondent.

 

REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK

 

TECHNICAL RECOMMENDATION:

RESPONDENT:

Department of Environmental Management

C.D.S. Mixers & Parts, LLC

 

By:__________________________

By:________________________

Samantha K. Groce, Chief

 

Water Enforcement Section

 

Surface Water, Operations &

Printed:_____________________

Enforcement Branch

 

Office of Water Quality

Title:_______________________

 

 

Date:________________________

Date:_______________________

 

 

COUNSEL FOR RESPONDENT:

 

 

 

By:________________________

 

 

 

Date:______________________

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS ___________ DAY OF ________________, 20___.

 

 

For The Commissioner:

 

 

Signed on July 12, 2018

 

Martha Clark Mettler

 

Assistant Commissioner

 

Office of Water Quality