STATE
OF INDIANA |
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BEFORE
THE INDIANA DEPARTMENT |
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COMMISSIONER
OF THE DEPARTMENT Complainant, v. UNITED
STATES GYPSUM COMPANY, 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.
United States Gypsum Company
(Respondent) owns/operates the United States Gypsum Company – Shoals facility, located at 11345 State Road 650, Shoals,
Martin County, Indiana (the Site).
3.
Respondent is authorized by its
National Pollutant Discharge Elimination System (NPDES) Permit No. IN0003646 (the
Permit), to discharge wastewater treated in accordance with the terms and
conditions of the NPDES Permit from the gypsum mining and gypsum product manufacturing
facility into Beaver Creek, via an unnamed ditch from multiple outfalls.
4.
IDEM has jurisdiction over the
parties and the subject matter of this action pursuant to IC 13-30-3.
5.
During an investigation conducted by
a representative of IDEM, violations were found, as described below.
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.
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) and Part I.B of the Permit, 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; or
e. are in amounts
sufficient to be acutely toxic to, or to otherwise severely injure or kill
aquatic life, other animals, plants, or humans.
During
a site visit on June 15, 2021, IDEM staff observed and documented dewatering activity
from the mine resulting in a discolored, milky white discharge from Outfall 003
impacting miles of Beaver Creek. IDEM staff documented Respondent discharging seven
thousand (7,000) gallons a minute into a tributary of Beaver Creek, and then
into Beaver Creek. During site visits on June 16 and June 18, 2021, IDEM staff observed,
and documented dewatering stopped, and blackish gray accumulations settled on
the bottom of Beaver Creek. During site visits on July 6 and July 12, 2021,
IDEM staff observed, and documented dewatering resumed, and the discolored,
milky white condition was again observed in miles of Beaver Creek. The discharge
from the site resulting in the milky white condition in Beaver Creek is in
violation of IC 13-18-4-5, IC 13-30-2-1(1), and 327 IAC 2-1-6(a)(1) and Part
I.B of the Permit.
8.
Respondent waives the issuance of a
NOV and to the settlement period of sixty (60) days as provided by IC 13-30-3-3.
9.
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 Paragraph 7 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 proposed AO and prior to the Effective Date.
2.
No later than August 6, 2021,
Respondent shall comply with the Permit, rules, and statutes listed in the findings
above at issue, including narrative water quality standards.
3.
Beginning immediately upon the Effective
Date, Respondent shall conduct enhanced outfall monitoring and report weekly the
results to the Enforcement Case Manager, via email, as follows:
a.
Respondent shall, for Outfall 003, monitor
twice a week flow, total suspended solids (TSS), oil and grease, sulfate, chloride and pH for Outfall 003.
b.
Respondent shall monitor twice a
week instream dissolved oxygen (DO), total dissolved solids (TDS), chloride and
sulfate. Samples should be collected in Beaver Creek at the intersection of Deep
Cut Lake Road and US 50.
c.
Respondent shall, at a minimum of
one time weekly, conduct a visual observation of Outfall 003, and record the
date of observation, time of observation, name of person making
the observation, and the narrative water quality at the outfall at the
time of visual monitoring.
d.
Respondent shall provide pictures of
the visual observations conducted pursuant to Order Paragraph 3.c, including
but not limited to a picture of Outfall 003 and a picture of the confluence of
Outfall 003 to Beaver Creek.
e.
When no discharge is present for Outfall
003 during a calendar week, the enhanced monitoring is not required. If discharge
is present for only one day in a calendar week for Outfall 003, the enhanced
monitoring will be reduced to one day per week during the day the discharge
occurs. Respondent shall document that there was no discharge, or the discharge
was limited to one day, on the weekly submittal.
The enhanced outfall
monitoring results for each week should be sent by the Friday of the subsequent
week to gchaddoc@idem.in.gov.
Respondent shall conduct enhanced outfall monitoring until there has been 6 consecutive
months of compliance or Respondent receives notification from IDEM that
enhanced monitoring may end, whichever occurs first. The conducting of enhanced
outfall monitoring pursuant to this Paragraph does not supersede Respondent’s obligation
to accelerate monitoring, as warranted, under the terms of the Permit. Additionally,
the reporting of results of the enhanced outfall monitoring under the terms of
this Paragraph does not supersede the reporting requirements of the Permit.
4.
By
August 31, 2021, Respondent shall complete the construction of a settling pond
and the performance of commissioning activities. Beginning August 31, 2021, Respondent
shall demonstrate 6 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 15 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 plan required by Order Paragraph
5 is 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 AAP and adhere to the milestone dates therein. Respondent shall submit
to IDEM written progress reports, frequency and due
dates to be set forth in the AAP, documenting completion of each milestone in the
approved AAP. The approved 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 6-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.
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 |
9.
Respondent is assessed and agrees to
pay a civil penalty of Thirty Three Thousand Seven
Hundred Fifty Dollars ($33,750). 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.”
10.
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 |
2 |
Failure to comply with the terms
and conditions of the Permit, rules, and statutes listed in the Findings of Fact |
$5,000 per day late, or part
thereof. |
3 |
Failure to conduct enhanced outfall
monitoring. |
$500 per violation |
3 |
Failure to report enhanced outfall
monitoring results within the given timeframe. |
$500 per week late, or part thereof |
5 |
Failure to submit the AAP, if required,
within the given time period. |
$2,500 per week late, or part thereof |
5 |
Failure to modify the AAP, if required,
within the given time period. |
$2,500 per week late, or part thereof |
6 |
Failure to meet or implement any
milestone date set forth in the approved CP or AAP. |
$2,500 per week late, or part
thereof |
11.
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.
12.
Civil and stipulated penalties are
payable by check to the “Environmental Management Special Fund.” Checks shall
include the Case Number 2021-27953-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 |
13.
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.
14.
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.
15.
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.
16.
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.
17.
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.
18.
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.
19.
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.
20.
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.
21.
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 |
United States Gypsum Company |
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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 August 2, 2021 |
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Martha Clark Mettler |
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Assistant Commissioner |
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Office of Water Quality |