STATE
OF INDIANA |
) |
|
BEFORE
THE INDIANA DEPARTMENT |
||
|
|||||
COMMISSIONER
OF THE DEPARTMENT Complainant, v. Premier Magnesia LLC D/B/A Giles Chemical, 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
(Premier Magnesia LLC D/B/A Giles Chemical owns/operates the facility located
at 200 Brown Street, Greendale, Dearborn County, Indiana (the Site).
3.
Respondent is authorized by National Pollutant
Discharge Elimination System (NPDES) Permit Number IN0064858
(the Permit) to discharge noncontact cooling water in accordance with the terms and conditions of the NPDES Permit from the Wastewater Treatment Plant (WWTP) into Tanners
Creek, via Outfall 001. At the
time of the incident, which occurred as described in Paragraphs 4 and 5 below, the Respondent was under the terms of a previous
NPDES Permit Number ING250110. The current permit was issued as required by the compliance plan under enforcement case 2019-25947-W.
4.
IDEM
has jurisdiction over the parties and the subject matter of this action
pursuant to IC 13-30-3.
5.
Pursuant
to IC 13-30-3-3, IDEM issued a Notice of Violation (NOV) via Certified
Mail/personal service to:
John K Gehret, CEO |
Business Commercial
Registered Agent |
Premier
Magnesia, LLC d/b/a |
Corporate Service
Company |
Giles Chemical |
135 North
Pennsylvania Street |
1275 Drummers
Lane |
Suite 1610 |
Suite 102 |
Indianapolis,
IN 46204 |
Wayne,
PA 19087 |
|
6.
327
Indiana Administrative Code (IAC) 5-2-8(1), states the permittee shall comply
with all terms and conditions of the Permit. Any permit noncompliance
constitutes a violation of the Clean Water Act and Indiana Code (IC) 13 and is
grounds for enforcement action by IDEM.
7.
During
an investigation on February 4 and 6, 2020, conducted by representatives of IDEM,
violations were found, as described below.
8.
Pursuant
to IC 13-18-4-5, a person may not: (1) throw, run, drain, or otherwise dispose;
or (2) 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), it is unlawful for any person to discharge, emit, cause or allow any contaminant or waste, including any
noxious odor, either alone or in combination with contaminants from other
sources in 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. 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.
On February 4, 2020 and February 6, 2020, IDEM representative(s) observed
and documented brownish tinted sediment along the bank of Tanners
Creek surrounding the Respondent's outfall.
On February 4, 2020, the Respondent reported
to IDEM a release of sulfuric acid from the secondary containment areas to Tanners Creek, all in violation of IC 13-18-4-5,
IC 13-30-2-1(1), and 327 IAC 2-
1-6(a)(1).
9.
Pursuant to Part II. A. 5. of the Permit and in accordance with 327 IAC 5-2-8(10)(F), the permittee shall submit any information that the permittee
knows or has reason to believe
would constitute cause for modification or revocation of the
permit at the earliest time such information becomes available, such as plans
for physical alterations or additions to the permitted facility that:
a.
could significantly change the nature
of, or increase the quantity
of, pollutants discharged or;
b.
the commissioner may request to evaluate whether such cause exists.
During
the inspection on February 4, 2020 and February 6, 2020, IDEM representative(s) observed
that process wastewater, air scrubber wastewater, and spill over from
the secondary containment areas have the ability
to discharge to Tanners Creek, which, at the time, were not accounted for in the Permit, in violation of 327 IAC 5-2-8(10)(F) and Part II. A. 5 of the Permit.
10.
On February
17, 2020, IDEM sent an Inspection Summary Letter to Respondent outlining
violations at their facility. The letters notified the Respondent that the violations
would be referred to the Enforcement Program.
At the time of the incident, the Respondent hired a contractor to address
the release that had occurred. A letter dated March 12, 2020, was received from
the Respondent in response to the Inspection Summary Letter.
11.
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 8 and 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 rules and statutes listed in the findings above at issue.
3.
Within 30 days of the
Effective Date, Respondent shall develop and submit to IDEM for approval a
Compliance Plan (CP) which identifies actions that Respondent will take to
achieve and maintain compliance with its Permit, specifically including the
actions Respondent will take to:
A.
Achieve and maintain
compliance with the discharges from the facility leading to Outfall 001.
The
CP shall include an implementation and completion schedule, including specific
milestone dates.
Respondent
shall notify IDEM in writing of variations to the approved CP.
4.
Respondent shall, after completion of the work
required pursuant to the approved CP from Paragraph 3 above, demonstrate 12
consecutive months of compliance (Compliance Demonstration) with the terms and
conditions of the Permit.
5.
In
the event that
violations occur during the Compliance Demonstration, within 30 days of the
violation, Respondent shall develop and submit to IDEM, for approval, an
Additional Action Plan (AAP) which identifies the additional actions that
Respondent will take to achieve and maintain compliance with the terms and
conditions of the Permit. The AAP, if required, shall include an implementation
and completion schedule, including specific milestone dates.
6.
The plans required by Order Paragraphs 3 and 5
are subject to IDEM approval. In the event IDEM determines that any plan or any
modified 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 Order.
7.
Respondent, upon receipt of written
notification from IDEM, shall immediately implement the approved plan(s) and
adhere to the milestone dates therein. The approved CP and AAP shall be incorporated
into the Agreed Order and shall be deemed an enforceable part thereof.
Following
completion of the actions included in the AAP, the 12-month Compliance Demonstration,
as specified in Paragraph 4 above, will re-start. Failure to achieve compliance
at the conclusion of work under an AAP may subject Respondent to additional
enforcement action.
8.
Beginning with the first calendar quarter
following the Effective Date, Respondent shall
submit to IDEM a written progress report within 10 days of the end of each
calendar quarter, which identifies the compliance actions implemented during each
quarter ending on March 31st, June 30th, September 30th,
and December 31st until completion of the CP or AAP.
9.
Within 30 days the Respondent shall submit a statement addressing
the requirement to notify IDEM with information that may require modification or revocation the Permit
as required by Paragraph 9 in the Findings of Facts.
10.
Beginning on the Effective Date and continuing
until the successful completion of the approved CP, Respondent shall, at all times, operate its existing facilities as efficiently
and effectively as possible.
11.
All
submittals required by this Agreed Order, unless Respondent is notified
otherwise in writing by IDEM, shall be sent to:
Patrick
Colcord, Enforcement Case Manager |
Office
of Water Quality – IGCN 1255 |
Indiana
Department of Environmental Management |
100
North Senate Avenue |
Indianapolis,
IN 46204-2251 |
12.
Respondent
is assessed and agrees to pay a civil penalty of Sixteen Thousand Eight Hundred
Seventy-Five Dollars ($16,875). 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.”
13.
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 submit the CP within the required time period. |
$250
per week late, or part thereof. |
4 |
For
violations of terms and conditions of the Permit during the Compliance Demonstration. |
$400
per violation |
5 |
Failure
to submit the AAP, if required, within the given time
period. |
$500
per week late, or part thereof. |
6 |
Failure
to modify the CP and/or AAP, if required, within the given time
period. |
$500
per week late, or part thereof. |
7 |
Failure
to meet and/or implement any milestone date set forth in the approved CP or
AAP. |
$500
per week late, or part thereof. |
8 |
Failure to submit to IDEM a written progress
report within 10 days of each calendar quarter. |
$150
per week late, or part thereof. |
9 |
Failure to submit documentation that
would require modification of the permit. |
|
10 |
Failure
to operate their facilities as efficiently and effectively as possible prior to
Compliance Demonstration. |
$200
per violation. |
14.
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.
15.
Civil
and stipulated penalties are payable by check to the “Environmental Management
Special Fund.” Checks shall include the Case Number 2020-27258-W of this action
and shall be mailed to:
Indiana
Department of Environmental Management |
Accounts
Receivable |
IGCN, Room
1340 |
100 North
Senate Avenue |
Indianapolis,
Indiana 46204 |
16.
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 it status or responsibilities under this
Agreed Order.
17.
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.
18.
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.
19.
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.
20.
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.
21.
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.
22.
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.
23.
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.
24.
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 |
Premier Magnesia LLC D/B/A Giles Chemical |
|
|
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 February 25, 2021 |
|
Martha
Clark Mettler |
|
Assistant
Commissioner |
|
Office
of Water Quality |