STATE
OF INDIANA |
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BEFORE
THE INDIANA DEPARTMENT |
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COMMISSIONER
OF THE DEPARTMENT Complainant, v. Westrock converting, LLC, Respondent. |
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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.
Westrock Converting, LLC (Respondent)
owns/operates the manufacturing facility located at 800A Romy Street, Eaton, Delaware
County, Indiana (the Site).
3.
Respondent is authorized by its
National Pollutant Discharge Elimination System (NPDES) Permit No. IN0005002 (the
Permit), to discharge wastewater in accordance with the terms and conditions of
the NPDES Permit into the Mississinewa River from Outfall 001, 002, and 003.
4.
IDEM has jurisdiction over the
parties and the subject matter of this action pursuant to IC 13-30-3.
5.
Respondent waives the issuance of a Notice
of Violation and the settlement period of sixty days as provided for by the IC
13-30-3-3.
6.
During an investigation conducted by
a representative of IDEM, violations were found, as described below.
7.
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.
8.
Pursuant to Part I.A. of the Permit,
the permittee is required to comply with the monitoring requirements contained
in the Permit, including effluent limitations.
Discharge
Monitoring Reports (DMRs) and Monthly Monitoring Reports (MMRs) submitted by
Respondent for the period of October 2017 through September 2020 revealed
violations of effluent limitations contained in Part I.A.2, from Outfall 002,
of the Permit as follows:
A.
The daily maximum loading limitation
for total suspended solids (TSS) was exceeded during April 2018, January and April 2019.
B.
The monthly average loading limitation
for TSS was exceeded during April 2018, and January and April 2019.
C.
The daily maximum loading limitation
for Carbonaceous Biochemical Oxygen Demand-5 day (CBOD5) was exceeded during April 2018, and January, March, and April 2019.
D.
The monthly average loading limitation
for CBOD5 was exceeded during April 2018, and January, March, and April 2019.
E.
The daily maximum loading limitation
for ammonia (as nitrogen) was exceeded during July 2019.
F.
The monthly average loading limitation
for ammonia (as nitrogen) was exceeded during July 2019.
G.
The daily maximum concentration
limitation for Oil and Grease was exceeded during January
2019.
H.
The monthly average concentration
limitation for Oil and Grease was exceeded during January 2019.
Respondent failed
to comply with the effluent limitations from Outfall 002 contained in the
Permit, in violation of Part
I.A.2 of the Permit.
9.
On July 16, 2019 and February 18,
2020, IDEM sent a Noncompliance Letter and an Inspection Summary Letter,
respectively, to Respondent outlining violations at the WWTP. The letters
required a response detailing actions taken to correct the violations. On August
14, 2019, and March 17, 2020, IDEM received responses to the letters explaining
compliance actions Respondent took or would take in furtherance of compliance.
10.
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 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 achieve compliance
with the effluent limitations for CBOD5, TSS, O&G, and ammonia as Nitrogen. Additionally, Respondent must meet new
limitations for chloride and mercury.
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 violation(s)
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.
Beginning
on the Effective Date and continuing until the successful completion of the
approved CP, Respondent shall, at all times, operate
its existing WWTP as efficiently and effectively as possible.
10.
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 |
11.
Respondent is assessed and agrees to
pay a civil penalty of Seventeen Thousand Five Hundred Dollars ($17,500). Said
penalty amount shall be due and payable to the “Environmental Management
Special Fund” within 60 days of the Effective Date, the 60th day
being a “Due Date.”
12.
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 operate the site as efficiently
and effectively as possible prior to Compliance Demonstration. |
$200 per violation. |
13.
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.
14.
Civil and stipulated penalties are
payable by check to the “Environmental Management Special Fund.” Checks shall
include the Case Number 2020-27397-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 |
15.
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.
16.
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.
17.
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.
18.
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.
19.
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.
20.
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.
21.
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.
22.
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.
23.
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 |
Westrock
Converting, LLC |
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By: __________________________ |
By: ________________________ |
Samantha
K. Groce, Chief |
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Water
Enforcement Section |
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Surface Water, Operations & |
Printed: _____________________ |
Enforcement Branch |
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Office of Water Quality |
Title: _______________________ |
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Date: ________________________ |
Date: _______________________ |
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COUNSEL
FOR RESPONDENT: |
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By: ________________________ |
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Date: ______________________ |
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APPROVED AND ADOPTED BY THE INDIANA
DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT THIS ___________ DAY OF
________________, 20___. |
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For the Commissioner: |
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Signed on March 15, 2021 |
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Martha Clark Mettler |
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Assistant Commissioner |
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Office of Water Quality |