STATE
OF INDIANA |
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BEFORE
THE INDIANA DEPARTMENT |
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COMMISSIONER
OF THE DEPARTMENT Complainant, v. Jericho 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.
Respondent is Jericho LLC (Respondent),
which owns/operates a coalbed methane facility, located at the Intersection of
CR 200N and CR 400E, Sullivan, Sullivan County, Indiana (the Site).
3.
Respondent is authorized by its National
Pollutant Discharge Elimination System (NPDES) Permit No. IN0062758 (the
Permit), to discharge coalbed methane groundwater in accordance with the terms
and conditions of the NPDES Permit into ponds that discharge to an unnamed
tributary of Busseron Creek, via Outfall 001 and to
an unnamed tributary of Mud Creek, via Outfall 003.
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:
Robert M. Leich Jr, Registered Agent |
Thomas M. Hite, Member |
Jericho LLC |
Jericho LLC |
203 Main St. |
203 Main St. |
Suite 105 |
Suite 105 |
Evansville, IN 47708 |
Evansville, IN 47708 |
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 IC 13 and is grounds for enforcement action by IDEM.
Discharge Monitoring Reports (DMRs) and Monthly Reports of
Operation (MROs) submitted by Respondent for the period of May 2018 through November
2020 revealed violations of effluent limitations contained in Part I.A.1 of the
Permit as follows:
A.
The daily maximum average concentration
limitation for chloride was exceeded during July and August 2018 and October
and December 2019.
B.
The monthly average concentration
limitation for chloride was exceeded during May, July, August, September, October,
November, and December 2018; and March, May, and June 2019.
C.
The monthly average concentration
limitation for sulfate was exceeded during September and October 2018 and
January 2019.
Respondent failed to comply with the effluent limitations
from Outfall 001 contained in the Permit, in violation of Part
I.A.1 of the Permit.
9.
Pursuant to Part I.A.2 of the
Permit, the permittee is required to comply with the monitoring requirements
contained in the Permit, including effluent limitations for Outfall 003.
DMRs and MROs
submitted by Respondent for the period of May 2018 through November 2020
revealed violations of effluent limitations contained in Part I.A.2 of the
Permit as follows:
A.
The daily maximum average
concentration limitation for chloride was exceeded during October 2018 and June
2020.
B.
The monthly average concentration
limitation for chloride was exceeded during May and October 2018 and June 2020.
C.
The monthly average concentration
limitation for total suspended solids (TSS) was exceeded during January 2019.
Respondent
failed to comply with the effluent limitations from Outfall 003 contained in
the Permit, in violation of Part I.A.2 of the Permit.
10.
On
July 9, 2019, Respondent sent IDEM a letter that included proposals to resolve
the compliance issues. On July 26, 2019, Respondent and IDEM held a meeting to
discuss compliance issues. On August 20, 2019, and December 7, 2020, IDEM sent
Inspection Summary Letters to Respondent outlining violations. The letters
required a response detailing actions taken to correct
the violations. IDEM received responses to the letters explaining compliance
actions Respondent took or would take to address the violations. However, the
violations noted above continue.
11.
The
Notice of Violation was issued March 26, 2021. Discussions with Respondent and
IDEM continued, and final acceptance of proposal provisions was made by IDEM on
October 21, 2021 concerning the compliance points for
Outfall 001 and Outfall 003.
12.
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 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 rules
and statutes listed in the findings above at issue.
3.
Within 30 days of the Effective
Date, Respondent shall resubmit any DMRs or MROs found
needing to be resubmitted.
4.
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.
Ensure analytical and sampling methods used conform to the
current version of 40 CFR, Part 136, unless otherwise specified, specifically
pH readings;
B.
Develop and implement a preventative maintenance program
for equipment, and document all maintenance (preventative and repair) in a
permanent record;
C.
Comply with reporting requirements of the Permit; and
D.
Submit plans for proper disposal of fracking fluids at
an offsite location.
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.
5.
Within 15 days
of IDEM’s approval of the CP from Paragraph 4 above, Respondent shall submit a
NPDES Permit Modification Application to IDEM’s Permits Branch requesting the following
changes to the Permit:
A.
Identify and establish new Outfalls 001 and 003 in ponds
001 and 003, respectively, at the topographically lowest points;
B.
Monitoring on a report-only basis for sulfate at (new) Outfall
001;
C.
Quarterly monitoring for all parameters at (new) Outfall
001 and (new) Outfall 003;
D.
Renaming the outlets of the coalbed methane groundwater discharges
identified in the Permit as Outfalls 001 and 003 to Internal Outfalls 101 and 103;
E.
Quarterly monitoring on a report-only basis for chloride,
sulfate and pH at (new) Internal Outfalls 101 and 103;
and
F.
Quarterly monitoring on a report-only basis for
chloride, sulfate and hardness at the lake adjacent to
the Outfall 001 Pond (the Lake).
(i) The
Application shall:
1.
Identify a representative sampling location and the
total depth of the Lake at that location, and
2.
Specify that samples for chloride, sulfate, and hardness
shall be collected at a depth of at least seventy-five percent (75%) of the
total depth at the selected sampling location.
6.
Respondent
shall, after completion of the work required pursuant to the approved CP from
Paragraph 4 above and issuance of the modified Permit by IDEM, demonstrate 12
consecutive months of compliance (Compliance Demonstration) with the terms and
conditions of the modified Permit.
7.
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.
8.
The plans required by Order Paragraphs
4 and 7 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.
9.
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
6 above, will re-start. Failure to achieve compliance at the conclusion of work
under an AAP may subject Respondent to additional enforcement action.
10.
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.
11.
Beginning
on the Effective Date and continuing until the successful completion of the approved
CP, Respondent shall, at all times, maintain in good working order and
efficiently operate all facilities and systems (and related appurtenances) for
the collection and treatment which are installed or used by Respondent
and which are necessary for achieving compliance with the terms and conditions
of the Permit.
12.
All submittals required by this
Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall
be sent to:
Grant Chaddock, Enforcement Case
Manager |
Office of Water Quality – IGCN
1255 |
Indiana Department of Environmental
Management |
100 North Senate Avenue |
Indianapolis, IN 46204-2251 |
13.
Respondent is assessed and agrees to
pay a civil penalty of Ten Thousand Five Hundred Dollars ($10,500). Said
penalty amount shall be paid in twelve (12) consecutive monthly payments. The
first payment in the amount of Eight Hundred Seventy-Five Dollars ($875) shall
be due within 30 days of the Effective Date. The remaining amount of Nine
Thousand Six Hundred Twenty-Five Dollars ($9,625) shall be due in eleven (11) consecutive
monthly payments of Eight Hundred Seventy-Five Dollars ($875), the final day of
each month being the Due Date. The checks shall be made payable to the Environmental
Management Special Fund.
14.
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 resubmit DMRs or MROs |
$150 per week late, or part
thereof. |
4 |
Failure to submit the CP within
the required time period. |
$250 per week late, or part thereof. |
5 |
Failure to submit a NPDES Permit
Modification Application including the specified changes to IDEM’s Permit Branch
within the required time period. |
$250 per week late, or part
thereof. |
6 |
For violations of terms and conditions
of the Permit during the Compliance Demonstration. |
$400 per violation |
7 |
Failure to submit the AAP, if
required, within the given time period. |
$500 per week late, or part
thereof. |
8 |
Failure to modify the CP and/or AAP,
if required, within the given time period. |
$500 per week late, or part
thereof. |
9 |
Failure to meet and/or implement
any milestone date set forth in the approved CP or AAP. |
$500 per week late, or part
thereof. |
10 |
Failure to submit
to IDEM a written progress report within 10 days of each calendar quarter. |
$150 per week late, or part thereof. |
11 |
Failure to efficiently operate all
facilities and systems. |
$200 per violation. |
15.
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.
16.
Civil and stipulated penalties are
payable by check to the “Environmental Management Special Fund.” Checks shall
include the Case Number 2020-27507-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 |
17.
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.
18.
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.
19.
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.
20.
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.
21.
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.
22.
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.
23.
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.
24.
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.
25.
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 |
Jericho LLC |
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By: __________________________ |
By: ________________________ |
Amari
Farren, 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 January 31, 2022 |
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Martha Clark Mettler |
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Assistant Commissioner |
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Office of Water Quality |