STATE OF INDIANA

COUNTY OF MARION

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BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v.

UNITED STATES GYPSUM COMPANY,

Respondent.

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Case No. 2021-27953-W

 

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

 

By: __________________________

By: ________________________

Amari Farren, 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 August 2, 2021

 

Martha Clark Mettler

 

Assistant Commissioner

 

Office of Water Quality