A. Pursuant to IC 13-30-2-1(1), a person may not discharge, emit, cause, allow, or threaten to discharge, emit, cause, or allow any contaminant or waste, including any noxious odor either alone or in combination with contaminants from other sources, into 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 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.

Pursuant to 327 IAC 5-2-8(1) and Part II.A.1 of the Permit, ESSROC Cement Corp. is required to comply with all terms and conditions of the Permit. Any permit noncompliance constitutes a violation of the Clean Water Act (CWA) and IC 13 and is grounds for enforcement action.

Pursuant to Part I.A.1 of the Permit, ESSROC Cement Corp. is required to comply with the effluent limitations applicable to the discharge from the WWTP Outfalls 001, 002, 004, and 005, contained in Part I.A.1 of the Permit.

Discharge Monitoring Reports and Monthly Reports of Operation submitted by ESSROC Cement Corp. to IDEM for the period from July 2000 through March 2003, reveal that ESSROC Cement Corp. failed to meet the effluent limitations contained in Part I.A.1 of the Permit as follows:

For Outfall 002, the maximum pH limitation was violated during March, July, and August of 2001, during July and December of 2002, and during February and March of 2003.

For Outfall 002, the daily maximum concentration effluent limitation for TSS was violated during July, August, and September of 2001, during July and September of 2002, and during February of 2003.

For Outfall 002, the monthly average concentration effluent limitation for TSS was violated during July of 2000, during July, August, September, and November of 2001, and during July and September of 2002.

For Outfall 004, the maximum pH limitation was violated during October and December of 2000, during February, November, and December of 2001, during December of 2002, and during January and February of 2003.

For Outfall 004, the daily maximum concentration effluent limitation for TSS was violated during October and November of 2000, during February of 2001, and during February and September of 2002.

For Outfall 004, the monthly average concentration effluent limitation for TSS was violated during October, November, and December of 2000, during February and December of 2001, during February, March, June, September, and December of 2002, and during February of 2003.

For Outfall 005, the maximum pH limitation was violated during July of 2002.

For Outfall 005, the daily maximum concentration effluent limitation for TSS was violated during February and July of 2001, and during February, July, September, and November of 2002.

For Outfall 005, the monthly average concentration effluent limitation for TSS was violated during August of 2000, during February, April, May, July, and September of 2001, and during February, July, September, and October of 2002.

These failures to meet effluent limitations contained in the Permit are in violation of IC 13-30-2-1(1), 327 IAC 5-2-2, 327 IAC 5-2-8(1), Part II.A of the Permit, and Part I.A of the Permit.

B. Pursuant to IC 13-18-11-14, it is unlawful for any person, firm or corporation, both municipal and private, to operate a water or wastewater treatment plant or a water distribution system unless the operator in responsible charge is duly certified by the commissioner under the provisions of this chapter.

Pursuant to 327 IAC 5-22, among the requirements to operate a Class A-SO wastewater treatment plant is for the operator to have at least a Class A-SO operator certification from IDEM.

Part II.A.10 of the Permit provides that ESSROC Cement Corp. shall have the waste treatment facilities under the supervision of an operator certified by the Commissioner as required by IC 13-18-11 and 327 IAC 8-12-3 (recodified as 327 IAC 5-22).

MROs submitted by ESSROC Cement Corp. indicate that ESSROC Cement Corp. has utilized Brian Graf as the certified operator for the ESSROC Cement Corp. facility since at least June 30, 2001 through March 18, 2003. As noted in letters sent to Brian Graf on July 5, 2001, and November 28, 2001, Brian Graf's operator certification (A-SO operator certification No. 10259) expired on June 30, 2001, and has not been renewed since that date because IDEM did not receive documentation that Brian Graf completed the required continuing education credit hours.

Therefore, ESSROC Cement Corp. operated the ESSROC Cement Corp. facility since at least June 30, 2001 through March 18, 2003, without an operator in responsible charge that was duly certified by the commissioner, in violation of IC 13-18-11-14 and Part II.A.10 of the Permit.