STATE OF INDIANA

 

COUNTY OF MARION

)

)

)

 

SS:

BEFORE THE INDIANA DEPARTMENT

OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT

OF ENVIRONMENTAL MANAGEMENT,

 

Complainant,

 

v.

 

THE DETROIT SALT COMPANY, LLC,

 

Respondent.

)

)

)

)

)

)

)

)

)

)

 

 

 

 

 

Case No. 2019-25991-Q

 

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.             The Detroit Salt Company, LLC (Respondent) owns and/or operates the Fort Wayne Salt Transfer, for bulk rock salt stockpile distribution, located at 7024 Parrot Road, New Haven, Allen County, Indiana (the Site).

 

Respondent is a subsidiary of Kissner Group Holdings, LP, which owns and operates The Detroit Salt Company, LLC, Detroit, Michigan salt mine. Respondent stockpiles and sells salt from the mine throughout the Midwest for deicing and other seasonal industrial applications under the brand name of Central Salt, LLC, which is also a subsidiary of Kissner Group Holdings, LP. The salt stockpile is located at Fort Wayne Salt Transfer, which is located in the shipping yard owned and operated by the Norfolk Southern Railway Company.

 

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, on May 29, 2019, IDEM issued a Notice of Violation via Certified Mail to:

 

Emanuel Z. Manos, President

CT Corporation System, Registered Agent for:

The Detroit Salt Company, LLC

The Detroit Salt Company, LLC

12841 Sanders Street

150 West Market Street

Detroit, MI  48217-1407

Suite 800

 

Indianapolis, IN  46204

 

5.             During a complaint investigation on December 18, 2019, and a follow-up inspection on January 3, 2019, conducted by representatives of IDEM, the following violations were found:

 

6.             Pursuant to 327 Indiana Administrative Code (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.        will settle to form putrescent or otherwise objectionable deposits;

B.        are in amounts sufficient to be unsightly or deleterious;

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

D.       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; and

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

 

Pursuant to IC 13-18-4-5, it is unlawful for any person to throw, run, drain, or otherwise dispose into any of the streams or waters of Indiana; or cause, permit, or suffer to be thrown, run, drained, allowed to seep, or otherwise disposed into any waters; any organic or inorganic matter that causes or contributes to a polluted condition of any waters, as determined by a rule of the board adopted under IC 13-18-4-1 or IC 13-18-4-3.

 

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.

 

As noted in IDEM’s Emergency Response Incident Report number 84558, on December 19, 2018, staff from IDEM’s Office of Land Quality, Emergency Response Section observed and documented that Respondent discharged and/or allowed the discharge of storm water contaminated with the salt/dye mixture from the Site. The discharge from the Site impacted waters of the State, in an amount sufficient to be unsightly or deleterious that produced color, odor or other conditions in such a degree to create a nuisance, and/or which was in amounts to be acutely toxic to, or otherwise severely injure or kill aquatic life, or other animals, plants, or humans. The origin of the discharge was determined to be from Respondent’s stockpile of salt/dye mixture at the Site, in violation of 327 IAC 2-1-6(a)(1), IC 13-18-4-5, and IC 13-30-2-1(1).

 

7.        Pursuant to 327 IAC 5-2-2, any discharge of pollutants into waters of the State, as a point source discharge, is prohibited unless in conformity with a valid National Pollutant Discharge Elimination System (NPDES) permit obtained from IDEM prior to the discharge.

 

At the time of the Site investigation on December 19, 2018, and during a follow- up inspection on January 3, 2019, staff from IDEM’s Office of Land Quality, Emergency Response Section, and the Office of Water Quality, Storm Water Program, observed and noted that the salt/dye mixture, which was in contact with storm water, was discharging from the Site. Respondent failed to obtain the required general storm water NPDES permit prior to discharging the storm water contaminated with the salt/dye mixture from the Site, to waters of the State, including a ditch that flows to an unnamed tributary that flows to the Maumee River, in violation of 327 IAC 5-2-2.

 

8.        Pursuant to 327 IAC 2-6.1-4(15), a “spill” means any unexpected, unintended, abnormal, or unapproved dumping, leakage, drainage, seepage, discharge or other loss of petroleum, hazardous substances, extremely hazardous substances, or other objectionable substances.

 

The discharge of the storm water containing the salt/dye mixture without permit coverage under 327 IAC 15-6 (Rule 6) or other applicable permits to waters of the State, constitutes a spill.

 

9.        Pursuant to 327 IAC 2-6.1-5 and 327 IAC 2-6.1-7, any person who operates, controls, or maintains any facility from which a spill occurs shall, upon discovery of a reportable spill to the soil or surface waters of the state, do the following:

 

(1)      Contain the spill, if possible, to prevent additional spilled material from entering the waters of the state.

(2)      Undertake or cause others to undertake activities needed to accomplish a spill response.

(3)      As soon as possible, but within two (2) hours of discovery, communicate a spill report to the Department of Environmental Management.

(4)      Submit to the Department of Environmental Management a written copy of the spill report if requested in writing by the department.

(5)      Except from modes of transportation other than pipelines, exercise due diligence and document attempts to notify the following:

 

(A)   For spills to surface water that cause damage, the nearest affected downstream water user located within ten (10) miles of the spill and in the state of Indiana; and

(B)   For spills outside the facility boundary, the affected property owner or owners, operator or operators, or occupant or occupants.

 

On December 19, 2018, and on January 3, 2019, inspections were conducted by IDEM’s Office of Land Quality, Emergency Response Section, and the Office of Water Quality, Storm Water Program. IDEM staff observed and documented that Respondent, upon becoming aware the discharge of storm water contaminated with the salt/dye mixture from the Site, failed to undertake required activities needed to accomplish a spill response, failed to contain and clean up the spill, and failed to communicate a spill report to IDEM within two (2) hours of discovery of the spill of the discharge to waters of the State, in violation of 327 IAC 2-6.1-5 and 327 IAC 2-6.1-7.

 

10.     Pursuant to 327 IAC 15-2-5, any person responsible for the operation of a facility from which a point source discharge of pollutants and/or storm water, associated with industrial activity and meets the general and applicability requirements of 327 IAC 15-2-2(a)(1), 15-2-3, and 15-6-2, must comply with, among other things, submission of a Notice of Intent (NOI) letter to the commissioner (of IDEM) that complies with this section, 327 IAC 15-3, and the additional requirements of 327 IAC 15-2-5, 15-6-5, 15-6-7, 15-6-7.3, and 15-6-7.5.

 

Pursuant to 327 IAC 15-3-3(a), any person proposing a new discharge that will be subject to a general permit under 327 IAC 15-6 and 327 IAC 15-7, or 327 IAC 15-14 shall submit an NOI letter and additional information, as required by the applicable general permit rule at least 180 days before the date on which the discharge is to commence unless permission for a later date has been granted by the commissioner (of IDEM) or is established in the applicable general permit rule.

 

Pursuant to 327 IAC 15-6-1, the purpose of this rule is to establish requirements for storm water discharges exposed to industrial activity that are composed entirely of storm water and allowable non-storm water so that public health, existing water uses, and aquatic biota are protected. The requirements under this rule apply to all facilities that meet the requirements contained in 327 IAC 15-6-2(a), and therefore must comply with, among other things, the requirements of 327 IAC 15-2-5, 15-6-1, 15-6-7, 15-6-7.3, and 15-6-7.5.

 

Pursuant to 327 IAC 15-6-2(a), facilities involved in salt mining and storage, which meet the industrial NPDES general permit rule applicability requirements under 327 IAC 15-2-3, are required to comply with the NPDES general permit rule for storm water discharges exposed to industrial activities.

 

Pursuant to 327 IAC 15-6-5(4), in addition to the NOI letter requirements under 327 IAC 15-3, information regarding the identification of the number and location of each outfall where storm water exposed to industrial activity discharges to waters of the State, including a narrative description of the industrial activity associated with the drainage area of each identified outfall, must be submitted within the NOI letter.

 

Pursuant to 327 IAC 15-6-6, all information required under 327 IAC 15-3 and section 5 of this rule shall be submitted to the commissioner (of IDEM) in accordance with 327 IAC 15-3-3. For newly constructed industrial facilities, the NOI letter shall be submitted 90 days prior to startup of industrial operations.

 

During the inspection on January 3, 2019, staff from IDEM’s Office of Water Quality, Storm Water Program, observed and noted that the nature of business conducted at the Site qualifies Respondent for general industrial storm water coverage. However, the NOI letter was not submitted at least 90 days before the date on which the discharge was to commence. In addition to general surface run-off, two separate point source discharges of storm water contaminated with the salt/dye mixture from the Site were identified as Outfall 001 and Outfall 002 in IDEM’s inspection report issued on January 23, 2019. Respondent failed to submit a complete NOI letter and obtain coverage for industrial storm water from IDEM prior any discharge associated with industrial activities at the Site, in violation of 327 IAC 15-2-5, 327 IAC 15-3-3(a), 327 IAC 15-6-1, 327 IAC 15-6-2(a), and 327 IAC 15-6-5(4).

 

On February 14, 2019, Respondent submitted a complete NOI letter.  On May 8, 2019, IDEM issued a Notice of Sufficiency (NOS), which included the general permit identification number INRM02546.  General Permit #INRM02546 will be valid for five (5) years from the permit issue date of February 14, 2019, which complies with the requirements of the NPDES general permit rule 327 IAC 15-6. Therefore, Respondent has obtained coverage for industrial storm water from IDEM for the discharge associated with industrial activities at the Site, in accordance with 327 IAC 15-2-5, 327 IAC 15-3-3(a), 327 IAC 15-6-1, 327 IAC 15-6-2(a), and 327 IAC 15-6-5(4).

 

11.     Pursuant to 327 IAC 15-6-7(a), the person having financial responsibility or operational control for a facility regulated under this rule shall develop, implement, update, and maintain a storm water pollution prevention plan (SWP3) in accordance with the rule.

 

Respondent failed to develop, implement, update, and maintain a SWP3 before the date on which the discharge associated with industrial activities from the Site commenced, in violation of 327 IAC 15-6-7(a).

 

On May 28, 2019, Respondent developed and submitted a copy of the SWP3 to IDEM. Further, as a requirement of the SWP3, on June 6, 2019, Respondent submitted the Certification Checklist to IDEM, in accordance with 327 IAC 15-6-7(a).

 

12.     On January 23, 2019, May 13, 2019, and August 5, 2019, IDEM issued Inspection Summary Violation Letters outlining corrective actions Respondent was required to take to comply with above noted violations. Respondent has returned to compliance with corrective actions required by the above noted Inspection Reports, and in accordance with the revised timeline that was submitted by Respondent on April 26, 2019.

 

13.     Orders of the Commissioner are subject to administrative review by the Office of Environmental Adjudication under IC 4-21.5. However, in recognition of the settlement reached, Respondent acknowledges notice of this right and 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 11 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 Notice of Violation and prior to the Effective Date.

 

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

 

3.        Beginning on the Effective Date and continuing until the successful completion of the requirements of the Agreed Order, Respondent shall, at all times, operate the Site as efficiently and effectively as possible, in accordance with rules and statutes listed in the findings above.

 

4.        Immediately, upon the Effective Date, if there is evidence of a future discharge of storm water contaminated with the salt/dye mixture from the Site, Respondent shall immediately notify IDEM’s 24-Hour Spill Hotline (888) 223-7745.

 

Respondent shall conduct a spill response and ensure that within two (2) hours of discovery of a spill it is communicated to IDEM, Homeland Security, and/or all other local agencies, as required by law.

 

5.        For the purposes of this Agreed Order, immediately upon the Effective Date, Respondent shall continue to implement and comply with its SWP3, as part of the Rule 6 Permit, which complies with 327 IAC 15-6-7.

 

In the event that IDEM determines that Rule 6 NOI submitted by Respondent on February 14, 2019 is deficient or otherwise unacceptable because Respondent changed its operations in any way that impacts the Rule 6 NOI, 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.

 

6.        No later than 365 days (one year) after the Rule 6 Permit was issued by IDEM on February 14, 2019, and for the purposes of this Agreed Order, on the first measurable storm event, as defined by 327 IAC 15-6-4(15), Respondent shall sample and analyze all storm water outfalls. Sampling shall include, at a minimum, the eight (8) parameters required by 327 IAC 15-6-7.3(a)(1), and Chloride. 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 storm water discharge from the Site 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.

 

7.        Respondent shall complete and submit a storm water discharge monitoring report (State Form 53590) to IDEM within 30 days of the laboratory analysis of a storm water sampling event, in conjunction with laboratory analysis, and all chain-of-custody documentation, as required by 327 IAC 15-6-7.3(b)(2). The storm event from which the sample is taken must occur within 365 days of February 14, 2019 for the first year of the permit coverage, and at least seventy-two (72) hours from the previous measurable storm event. If no discharge occurs from Outfall 002 during the permit year, Respondent shall submit a storm water discharge monitoring report indicating that no discharge has occurred.

 

8.        Within 365 days (one year) of the initial NOI submittal date of February 14, 2019, 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; and

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

 

Respondent shall within 30 days after laboratory analyses have been completed shall submit the sampling results to the commissioner at the address specific in section 8.5:

 

Attention:  Storm Water Program

Indiana Department of Environmental Management

Office of Water Quality

IGCN 1255

100 N. Senate Avenue

Indianapolis, IN  46204

 

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

 

Aletha Lenahan, Enforcement Case Manager

Office of Water Quality – IGCN N1255

Indiana Department of Environmental Management

100 N. Senate Avenue

Indianapolis, IN  46204-2251

 

10.         Respondent is assessed and agrees to pay a civil penalty of Eight Thousand, Three Hundred Seventy-Five Dollars ($8,375). 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.”

 

11.         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 operate and maintain the Site as efficiently and effectively as possible, in accordance with rules and statutes.

$500 per violation

4

Failure to conduct a spill response, when required.

$500 per violation

4

Failure to within two (2) hours of discovery of a spill it is communicated to IDEM, Homeland Security, and/or all other local agencies, as required by law.

$500 per violation

5

Failure to implement and comply with its SWP3, as part of the Rule 6 Permit.

$500 per week late

6

Failure to sample and analyze all storm water outfalls

$500 per week late

7

Failure to complete and submit a storm water discharge monitoring report

$250 per week late

8

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

$250 per week late

 

12.         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.

 

13.         Civil and stipulated penalties are payable by check to the “Environmental Management Special Fund.” Checks shall include the Case Number

2019-25991-Q of this action and shall be mailed to:

 

Indiana Department of Environmental Management

Accounts Receivable

IGCN, Room N1340

100 N. Senate Avenue

Indianapolis, IN  46204

 

14.         This Agreed Order shall apply to and be binding upon Respondent, its successors and assigns. Respondent’s signatories to this Agreed Order certify that they are fully authorized to execute this 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.

 

15.         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.

 

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 permits or any applicable Federal or State law or regulation.

 

19.         Complainant does not, by his 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 Notice of Violation.

 

21.         Nothing in this Agreed Order shall prevent IDEM (or anyone acting on its behalf) from communicating with the United States Environmental Protection Agency (US 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 US EPA or any other agency or entity.

 

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

 

REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.

 

TECHNICAL RECOMMENDATION:

RESPONDENT:

Department of Environmental Management

The Detroit Salt Company, 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 November 14, 2019

 

Martha Clark Mettler

 

Assistant Commissioner

 

Office of Water Quality