Agreed Order

STATE OF INDIANA			)		BEFORE THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT
			)	SS:
COUNTY OF MARION			)

COMMISSIONER OF THE DEPARTMENT						)
OF ENVIRONMENTAL MANAGEMENT,						)
						)
	Complainant,					)
						)
		v.				)	CASE NO. 2000-9873-W
						)
BLACK BEAUTY RESOURCES, INC.,						)
(d/b/a Black Beauty Coal Company),						)
						)
	Respondent.					)

AGREED ORDER

The Complainant and the 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.

I. FINDINGS OF FACT

1. Complainant is the Commissioner (hereinafter referred to as "Complainant") of the Indiana Department of Environmental Management, a department of the State of Indiana created by IC 13-13-1-1.

2. The Respondent is Black Beauty Resources, Inc. (d/b/a Black Beauty Coal Company) ("Respondent"), which owns and operates the Corning Mine Facility located ½ mile east of the intersection of county roads 800E and 500S, near Corning, Daviess County, Indiana ("Site"), and which is authorized by NPDES General Permit Number ING040154 ("Permit") to discharge wastewater to the West Fork of Sugar Creek.

3. The Indiana Department of Environmental Management ("IDEM") has jurisdiction over the parties and subject matter of this action.

4. Pursuant to IC 13-30-3-3, on November 27, 2000, IDEM issued a Notice of Violation via Certified Mail to:

Mr. Steven E. Chancellor, President
Black Beauty Resources, Inc.
414 Fares Avenue
Evansville, Indiana 47714

and

Mr. Stephen E. Weitzel, Registered Agent
Black Beauty Resources, Inc.
20 Northwest First Street, 9th Floor
P.O. Box 916
Evansville, Indiana 47706

5. An inspection was conducted on October 31, 2000, at the Site by a representative of IDEM's Southwest Regional Office and an Indiana Department of Natural Resources (IDNR) Conservation Officer. The following violations were in existence or observed at the time of this inspection:

A. Pursuant to 327 IAC 5-2-2, any discharge of pollutants into waters of the state as a point source discharge, except for exclusions made in 327 IAC 5-2-4, is prohibited unless in conformity with a valid NPDES permit obtained prior to the discharge. The Respondent discharged zinc, manganese, and ammonia nitrogen from Corning Mine Outfall #002 into the West Fork of Sugar Creek on or about October 30, 2000, without a valid NPDES permit obtained prior to the discharge, in violation of 327 IAC 5-2-2.

B. Pursuant to 327 IAC 2-1-6(a), all waters at all times and at all places, including the mixing zone, shall, among other requirements, 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 including, but are not limited, those that:

(1) are in amounts sufficient to be unsightly or deleterious;

(2) produce color, visible oil sheen, odor, or other conditions in such degree as to create a nuisance; and

(3) which are in amounts sufficient to be acutely toxic to, or to otherwise severely injure or kill aquatic life, other animals, plants, or humans.

The Respondent discharged substances that were in amounts sufficient to be unsightly or deleterious; and/or that produced color, odor or other conditions in such degree as to create a nuisance, and/or which were in amounts sufficient to be acutely toxic to, or to otherwise severely injure or kill, aquatic life, other animals, plants, or humans from Corning Mine Outfall #002 into the West Fork of Sugar Creek on or about October 30, 2000, in violation of 327 IAC 2-1-6(a).

C. Pursuant to IC 13-18-4-5, it is unlawful for any person to throw, run, drain, or otherwise dispose into any of the streams or waters of Indiana; or cause, permit, or suffer to be thrown, run, drained, allowed to seep, or otherwise disposed into any waters; any organic or inorganic matter that causes or contributes to a polluted condition of any waters, as determined by a rule of the board adopted under sections 1 and 3 of this chapter. The Respondent violated 327 IAC 5-2-2 and 327 IAC 2-1-6(a), both rules adopted by the board, by discharging effluent that contained levels of zinc, manganese, and ammonia nitrogen that indicated a reasonable potential to exceed water quality standards from Corning Mine Outfall #002 into the West Fork of Sugar Creek on or about October 30, 2000, thereby causing and/or contributing to a polluted condition of waters of the state, in violation of IC 13-18-4-5.

6. Prior to October 30, 2000, the Respondent was reclaiming an area of the Site that had been used by the previous operator as a coal preparation area. This area included a pit that had contained water used in the coal preparation process. The previous operator had mixed anhydrous ammonia with the water in the pit to reduce sulfuric acid content caused by the coal and its by-products on the equipment.

7. On or about October 30, 2000, the Respondent discharged wastewater from the pit at the Site via Outfall #002. Outfall #002 is a permitted outfall under the Respondent’s general NPDES permit. Respondent had attempted to raise the wastewater pH level through use of a sodium hydroxide unit; however, that attempt was not successful.

8. On October 31, 2000, IDEM and IDNR inspectors investigated a fish kill in Sugar Creek approximately 1/2 mile upstream of where Sugar Creek empties into the East Fork of the White River ("Location 1"). An ammonia nitrogen field test indicated ammonia levels of greater than 8 parts per million ("ppm"). The IDEM and IDNR inspectors followed the creek upstream to the point where the East Fork of Sugar Creek and the West Fork of Sugar Creek converge ("Location 2"). All ammonia nitrogen field tests conducted between Locations 1 and 2 indicated ammonia levels of greater than 8 ppm and dead fish and frogs were observed between the two locations. The IDEM and IDNR inspectors conducted ammonia nitrogen field tests on both the East and the West Forks of Sugar Creek upstream of the point of convergence. The ammonia nitrogen field test for the East Fork of Sugar Creek indicated no ammonia in the water. The ammonia nitrogen field test for the West Fork of Sugar Creek indicated levels of ammonia greater than 8 ppm. The IDEM and IDNR inspectors continued following the West Fork of Sugar Creek upstream to the Site's Outfall #002. All ammonia nitrogen field tests conducted between Location 2 and the Site indicated ammonia levels of greater than 8 ppm. Upon arriving at the Site's Outfall #002, it was observed that the Respondent was discharging from the outfall. Ammonia nitrogen field tests conducted on wastewater from the Respondent's discharge system for the Site indicated ammonia levels greater than 8 ppm. A pH test conducted on wastewater from the Respondent's discharge system for the Site indicated a pH of about 3 standard units. Tests for pH conducted on the wastewater actively being discharged from the Respondent's Site via Outfall #002 indicated levels of between 2.0 and 2.47 standard units. The IDEM and IDNR inspectors requested that the Respondent cease discharging immediately and the Respondent complied.

In addition to the field tests, additional samples were collected to be more thoroughly analyzed for IDEM by Heritage Environmental Services, L.L.C.

9. On November 1, 2000, IDEM conducted ammonia nitrogen field tests and pH tests between Location 1 and the Site's Outfall #002. All ammonia nitrogen field tests indicated ammonia levels of 8 ppm or greater. The pH tests indicated levels between 6 and 7. Dead fish and frogs were also observed.

10. On November 2, 2000, IDEM conducted ammonia nitrogen field tests and pH tests between Location 1 and the Site's Outfall #002. All ammonia nitrogen field tests indicated ammonia levels of 8 ppm or greater. The pH tests indicated levels between 5 and 8 standard units. Dead fish and frogs were also observed. An ammonia nitrogen field test conducted on the East Fork of the White River approximately 25 feet downstream from where Sugar Creek empties into the East Fork of the White River indicated an ammonia level of 2 ppm.

11. On November 14, 2000, IDEM received from Heritage Environmental Services, L.L.C., the analytical results of the additional sampling conducted at the Site's Outfall #002 on October 31, 2000. These results indicated an iron level of 25 ppm, a manganese level of 5.7 ppm, a zinc level of 1.0 ppm, an ammonia nitrogen level of 44 ppm, a pH of 4.0 standard units, and a biochemical oxygen demand that was below the detection level of 2 ppm.

12. The high level of sulfuric acid in the water in the pit, which is a by-product of coal preparation, held the ammonia in suspension instead of allowing it to dissipate out of the water in the pit. The Respondent worked with IDEM to identify a means of reducing the ammonia nitrogen levels at the Site to a level below that which indicated a reasonable potential to exceed water quality standards. The Respondent was then allowed to resume discharging its wastewater in accordance with its general NPDES permit, including proper pH treatment through use of the sodium hydroxide treatment unit.

13. On October 15, 2001, the Respondent sent to IDEM a letter containing the results of ammonia nitrogen sampling conducted on August 29, 2001. All water bodies on the Respondent's Site that were known or suspected to have previously contained ammonia nitrogen were sampled. All sample results indicated ammonia nitrogen levels of 1.3 mg/l or less.

14. In recognition of the settlement reached, the Respondent 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 approved by the Complainant or her delegate, and has been received by the Respondent. This Agreed Order shall have no force or effect until the Effective Date.

2. The Respondent shall comply with all applicable provisions of the Indiana Code ("IC"), Indiana Administrative Code ("IAC"), and any effective permits, including but not limited to, 327 IAC 5-2-2, 327 IAC 2-1-6(a), and IC 13-18-4-5.

3. Beginning during the first full month after the Effective Date of this Agreed Order, and continuing until either the Respondent has completed at least twelve full consecutive months of monitoring or IDEM has notified the Respondent in writing that the Respondent needs to submit an application for an individual NPDES permit, the Respondent shall collect and analyze, or have analyzed, the following monitoring samples from each outfall with a discharge at the Site, in accordance with the frequency schedule listed in Section II, Paragraph 4, of this Agreed Order:

A. 1 grab sample for settleable solids;

B 1 grab sample for total suspended solids;

C. 1 grab sample for iron (as FE);

D. 1 grab sample for pH;

E. 1 instantaneous sample for flow; and

F. in the event that the monthly grab sample for pH indicates pH levels below 6.0 standard units or above 9.0 standard units, 1 grab sample for total recoverable metals.

In addition, beginning during the calendar quarter (January - March, April - June, July - September, or October - December) in which the Effective Date of this Agreed Order occurs, and continuing until either the Respondent has completed at least two consecutive calendar quarters of monitoring or IDEM has notified the Respondent in writing that the Respondent needs to submit an application for an individual NPDES permit, the Respondent shall collect and analyze, or have analyzed, 1 grab sample for ammonia nitrogen.

All sampling and analytical methods shall conform to the most current version of 40 CFR 136, as referenced in 327 IAC 5-2-13(d)(1), and shall be representative of the volume and nature of the monitored discharge.

4. The Respondent shall collect the samples listed at a point representative of the discharge but prior to entry into waters of the state, in accordance with the following frequency schedule:

A. In the event that 2 or more distinct discharge events occur during any particular month, the Respondent shall collect and analyze, or have analyzed, the above-listed monitoring samples from at least 2 distinct discharge events that month. Whenever possible, one sample shall be representative of the dry weather base flow and one sample shall be representative of flow during a precipitation event.

B. In the event that less than 2 distinct discharge events occur during any particular month, the Respondent shall collect and analyze, or have analyzed, the above-listed monitoring samples from each discharge event that month.

C. In the event that no discharge event occurs during a particular month, the Respondent shall not be required to collect and analyze, or have analyzed, any monitoring samples for that month.

5. Beginning during the calendar quarter in which the Effective Date of this Agreed Order occurs, and continuing until either the Respondent has completed at least four consecutive calendar quarters of monitoring or IDEM has notified the Respondent in writing that the Respondent needs to submit an application for an individual NPDES permit, the Respondent shall collect and analyze, or have analyzed, at least one grab sample for each of pH and iron (as FE) from the Site's NPDES Lagoon #1.

6. The Respondent shall, for all samples collected in accordance with Section II, Paragraphs 3 and 5, of this Agreed Order, report the following information to IDEM, either on the Site's monthly Discharge Monitoring Report (DMR), if appropriate, or as an attachment to the DMR, as well as retain the information on-site with the Site's DMR records for at least three years:

A. the exact place, date and time of sampling;

B. the name of the person or persons who performed the sampling;

C. the dates the analyses were performed;

D. the name of the person or persons who performed the analyses;

E. the analytical techniques or methods used;

F. the results of all analyses; and

G. the volume and duration of any precipitation event associated with any sampling.

In addition to its regular DMR submission, while this Agreed Order is in effect, the Respondent shall also submit a copy of its monthly DMRs and any accompanying attachments to IDEM's Office of Enforcement and IDNR's Division of Reclamation.

7. IDEM will notify the Respondent, in writing, if IDEM determines any of the following conditions to be true:

A. that the requirements of the Respondent's general NPDES Permit Number ING040154 for the discharge of wastewater from surface mining, underground mining, and reclamation projects are not adequate to ensure compliance with the water quality standards of 327 IAC 2-1 or the provisions of 327 IAC 5 that implement the water quality standards; or

B. that the Respondent is not in compliance with the terms and conditions of its general NPDES Permit Number ING040154 for the discharge of wastewater from surface mining, underground mining, and reclamation projects.

8. Upon receipt from IDEM of a notice stating that IDEM has determined any condition listed in Section II, Paragraph 7, of this Agreed Order to be true, the Respondent shall take the following steps:

A. immediately cease the discharge;

B. take all reasonable steps to prevent further discharges in violation of 327 IAC 2-1-6(a); and

C. within 90 days submit a complete and sufficient application for an individual NPDES Permit.

9. All submittals required by this Agreed Order to be sent to IDEM's Office of Enforcement, unless notified otherwise in writing, shall be sent to:

Susan J. Baker, Office of Enforcement
Indiana Department of Environmental Management

100 North Senate Avenue
P.O. Box 6015
Indianapolis, IN 46206-6015

All submittals required by this Agreed Order to be sent to IDNR's Division of Reclamation, unless notified otherwise in writing, shall be sent to:

Darrell Davis
Indiana Department of Natural Resources
Division of Reclamation
RR2 Box 129
Jasonville, IN 47441

10. The Respondent is assessed a civil penalty of Eight Thousand, Twenty-Five Dollars ($8,025). Said penalty amount shall be due and payable to the Environmental Management Special Fund within 30 days of the Effective Date of this Agreed Order.

11. Pursuant to IC 13-25-6-3, the Respondent shall reimburse the Complainant for the cost incurred for sampling in the investigation of the unpermitted discharge and fish kill event which is the subject of this action. IDEM has determined this amount to be Thirteen Thousand, Seven Hundred Fifty-Eight Dollars and Eight Cents ($13,758.08). This dollar amount is strictly for the purposes of cost recovery, and is separate and distinct from the civil penalty that is being assessed in this case. Payment shall be made to the Indiana Department of Environmental Management's Hazardous Substance Response Trust Fund within 30 days of the Effective Date of this Agreed Order, and sent to:

Cashier, IDEM
100 N. Senate Avenue
P.O. Box 7050
Indianapolis, Indiana 46207-7050

12. The Respondent shall reimburse the Indiana Department of Natural Resources (IDNR) for the value of the damage to the natural resources, under authority of IC 14-2-6-7. IDNR has determined this figure to be Four Hundred Ninety-Nine Dollars and Fifty Cents ($499.50). Payment shall be made to the Natural Resources Damage Fund, #6000 Center 1492-00, within 30 days of the effective date of this Order, and sent to:

IDNR Division of Fish and Wildlife
402 West Washington Street, IGCS Room W-273
Indianapolis, Indiana 46204

The Respondent shall provide Complainant with documentation of the reimbursement immediately upon payment.

13. In the event the terms and conditions of the following Order paragraphs are violated, the Complainant may assess and the Respondent shall pay a stipulated penalty in the following amount:

Violation

Penalty

Failure to comply with Paragraph 3

$100 per each type of required sample per each outfall the Respondent fails to collect during a discharge event.

Failure to comply with Paragraph 4

$500 per each required discharge event per each outfall the Respondent fails to sample.

Failure to comply with Paragraph 5

$100 per each required sample the Respondent fails to collect.

Failure to comply with Paragraph 6

$100 per each monthly DMR, along with all accompanying attachments, the Respondent fails to submit to IDEM's Office of Enforcement or IDNR's Division of Reclamation.

Failure to comply with Paragraph 8

$500 per each week, or part thereof, after the 90-day deadline that the Respondent fails to submit a complete and sufficient application for an individual NPDES Permit, if required.

14. Stipulated penalties shall be due and payable within 30 days after the Respondent receives written notice that the Complainant has determined a stipulated penalty is due. Assessment and payment of stipulated penalties shall not preclude the Complainant from seeking any additional relief against the Respondent for violation of the Agreed Order. In lieu of any of the stipulated penalties given above, the Complainant may seek any other remedies or sanctions available by virtue of the Respondent's violation of this Agreed Order, or 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 of this action and shall be mailed to:

Cashier
Indiana Department of Environmental Management
100 N. Senate Avenue
P. O. Box 7060
Indianapolis, IN 46207-7060

16. In the event that the civil penalty required by Section II, Paragraph 10, is not paid within 30 days of the Effective Date of this Agreed Order, the Respondent shall pay interest on the unpaid balance at the rate established by IC 24-4.6-1-101. The interest shall continue to accrue until the civil penalty is paid in full.

17. This Agreed Order shall apply to and be binding upon the Respondent, its officers, directors, principals, agents, successors, subsidiaries, and assigns. The Respondent's signatories to this Agreed Order certify that they are fully authorized to execute this document and legally bind the parties they represent. No change in ownership, corporate, or partnership status of the Respondent shall in any way alter the Respondent's status or responsibilities under this Agreed Order.

18. In the event that any terms of the 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 the Agreed Order did not contain the invalid terms.

19. The Respondent shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights are transferred. The 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, nor shall it in any way relieve the Respondent of its obligation to comply with the requirements of any applicable permit or with any other applicable federal or state law or regulation.

21. The Complainant does not, by her approval of this Agreed Order, warrant or aver in any manner that the Respondent's compliance with any aspect of this Agreed Order will result in compliance with the provisions of the Clean Water Act, any permit held by the Respondent, or state law.

22. This Agreed Order shall remain in effect the until the Respondent has complied with the terms and conditions of Section II, Paragraphs 2 through 16, of this Agreed Order and IDEM issues a Resolution of Case letter to the Respondent.

TECHNICAL RECOMMENDATION:

RESPONDENT:

Department of Environmental Management

Black Beauty Resources, Inc.

By:

__________________________________

By:

__________________________________

Mark W. Stanifer
Section Chief, Water Section
Office of Enforcement

Printed:

Title:

__________________________________

__________________________________

Date:

__________________________________

Date:

__________________________________

COUNSEL FOR COMPLAINANT:

COUNSEL FOR RESPONDENT:

Department of Environmental Management

By:

__________________________________

By:

__________________________________

Office of Legal Counsel

Date:

__________________________________

Date:

__________________________________

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS ________________ DAY OF ____________________________, 2002.

For The Commissioner:

Original signed on August 5, 2002, by

Felicia A. Robinson
Deputy Commissioner for Legal Affairs

Violation	Penalty
Failure to comply with Paragraph 3	$100 per each type of required sample per each outfall the Respondent fails to collect during a discharge event.

Failure to comply with Paragraph 4	$500 per each required discharge event per each outfall the Respondent fails to sample.

Failure to comply with Paragraph 5	$100 per each required sample the Respondent fails to collect.

Failure to comply with Paragraph 6	$100 per each monthly DMR, along with all accompanying attachments, the Respondent fails to submit to IDEM's Office of Enforcement or IDNR's Division of Reclamation.

Failure to comply with Paragraph 8	$500 per each week, or part thereof, after the 90-day deadline that the Respondent fails to submit a complete and sufficient application for an individual NPDES Permit, if required.