STATE OF INDIANA |
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BEFORE THE INDIANA DEPARTMENT OF |
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ENVIRONMENTAL MANAGEMENT |
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COUNTY OF MARION |
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COMMISSIONER OF THE DEPARTMENT |
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OF ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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v. |
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Case No. 2015-22987-W |
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stella-jones
corporation, |
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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 Stella-Jones Corporation (Respondent), which owns and operates an industrial
facility, used to produce pressure treated wood products, located at 3818 South
County Road 50 East, in Winslow, Pike County, Indiana (the Site).
3.
Respondent
is authorized by its National Pollutant Discharge Elimination System (NPDES)
Permit No. IN0063045 (the Permit), to discharge boiler blow down, water
softener recharge, and cooling tower blow-down in accordance with the terms and
conditions of the NPDES Permit from its facility into receiving waters consisting
of Barren Ditch from outfall 004.
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 to
Corporation Services Company.
6.
During
an investigation conducted by representatives of IDEM, violations were found,
as described below.
7.
Pursuant
to 327 Indiana Administrative Code (IAC) 5-2-8(1), and Part II.A.1 of the
Permit, Respondent is required to comply with all terms and conditions of the
Permit.
8.
Pursuant
to Part I.A.1 of the Permit, Respondent is required to comply with the
discharge limitations contained in the Permit that are applicable to the
discharges from Outfall 004.
A
review of Discharge Monitoring Reports (DMRs) and Monthly Monitoring Reports (MMRs)
submitted by Respondent for the period of December 2012 through February 2015,
revealed violations of discharge limitations contained in Part I.A.1 of the
Permit, during twenty-four (24) months as follows:
A.
The
monthly average concentration limitation for Copper was exceeded during July,
August, September, October, and November 2013; January, February, March, April,
May, June, July, August, September, October, and December 2014; and January
2015.
B.
The
daily maximum concentration limitation for Copper was exceeded during July,
August, and September 2013; January, February, June, July, August, October, and
December 2014; and January 2015.
C.
The
monthly average concentration limitation for Total Suspended Solids (TSS) was
exceeded during January, February, May, and June 2013; January, October,
November, and December 2014, and January 2015.
D.
The
daily maximum concentration limitation for TSS was exceeded during December
2012; January, February, May, and June 2013; January, April, September,
October, November, and December 2014; and January 2015.
E.
The
monthly average concentration limitation for Iron was exceeded during April
2013, January, February, October, and December 2014, and January 2015.
F.
The
daily maximum concentration limitation for Iron was exceeded during January,
July, October, and December 2014, and January 2015.
G.
The
daily minimum concentration for Dissolved Oxygen (DO) was not achieved during
one or more days in May and June 2013.
H.
The
monthly average concentration limitation for Sulfate was exceeded during April
2014.
I.
The
daily maximum concentration limitation for Total Residual Oxidants was exceeded
during July 2013.
Respondent
failed to comply with discharge limitations contained in the Permit, in
violation of 327 IAC5-2-8(1), Part II.A.1 of the Permit, and Part I.A.1 of the
Permit.
9.
Pursuant
to Part I.A.1[5] of the Permit, the discharge from Outfall 004 shall not exceed
the maximum limits in the following table by more than three degrees Fahrenheit
(3°F) (one and seven-tenths degrees Celcius (1.7°C))
|
Jan |
Feb |
Mar |
Apr |
May |
Jun |
Jul |
Aug |
Sep |
Oct |
Nov |
Dec |
°F |
50 |
50 |
60 |
70 |
80 |
90 |
90 |
90 |
90 |
78 |
70 |
57 |
°C |
10 |
10 |
15.6 |
21.1 |
26.7 |
32.2 |
32.2 |
32.2 |
32.2 |
25.5 |
21.1 |
14 |
A.
The
maximum temperature limit for October was exceeded by more than three degrees
Fahrenheit (3°F) during October 2013.
Respondent
failed to comply with maximum temperature limitations contained in the Permit,
in violation of 327 IAC5-2-8(1), Part II.A.1 of the Permit, Part I.A.1 of the
Permit, and Part I.A.1[5] of the Permit.
10.
In
recognition of the settlement reached, 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 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 7 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 the rules and/or permit conditions listed in the findings
above at issue.
3.
Within
30 days of the Effective Date, Respondent shall develop and submit to IDEM for
approval a Compliance Plan (CP) which identifies actions the Respondent will
take to achieve and maintain compliance with its Permit, specifically, actions
Respondent will take to evaluate and implement a means to consistently meet its
permitted discharge limitations, including methods for consistently achieving
compliance with Copper, TSS, Iron, DO, Sulfate, Total Residual Oxidants, and
Temperature discharge limitations. The
CP shall include an implementation and completion schedule, including specific
milestone dates.
4.
Respondent
shall, after completion of the work required pursuant to the approved CP from
Paragraph 3 above, demonstrate six consecutive months of compliance (Compliance
Demonstration) with the discharge limitations contained in its Permit. During the Compliance Demonstration period,
Respondent shall be subject to stipulated penalties, as specified below, for
violations of the discharge limitations.
In
the event that Respondent fails to make the Compliance Demonstration, Respondent
shall, within 10 days of becoming aware that the Compliance Demonstration
cannot be achieved, submit notification to IDEM that a discharge exceedance has
occurred, and within 30 days of becoming aware that the Compliance
Demonstration cannot be achieved, develop and submit to IDEM, for approval, and
Additional Action Plan which identifies the additional actions that Respondent
will take to achieve and maintain compliance with the discharge limitations
contained in the Permit. The Additional
Action Plan, if required, shall include an implementation and completion
schedule, including specific milestone dates.
5.
The
plans required by Paragraphs 3 and 4 above are subject to IDEM approval. In the event IDEM determines that any 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.
Respondent,
upon receipt of written notification from IDEM, shall immediately implement the
approved plan and adhere to the milestone dates therein. The approved CP and Additional Action Plan
shall be incorporated into the Agreed Order and shall be deemed an enforceable
part thereof. Failure by Respondent to
submit any plan by the specified date, or to meet any of the milestones in the
approved plan, will subject Respondent to stipulated penalties as described
below. Failure to achieve compliance to
the conclusion of work under an additional Action Plan will subject Respondent
to additional enforcement action.
6.
Respondent
shall submit to IDEM a written report of progress or completion for each
milestone date included in the CP or Additional Action Plan within 10 days of completion
of the requirements of each milestone.
7.
All
submittals required by this Agreed Order, unless Respondent is notified
otherwise in writing by IDEM, shall be sent to:
Amari
Farren, Enforcement Case Manager |
Office
of Water Quality – IGCN 1255 |
Indiana
Department of Environmental Management |
100
North Senate Avenue |
Indianapolis,
IN 46204-2251 |
8.
Respondent is assessed and
agrees to pay a civil penalty of Eleven Thousand Eight Hundred and Thirty-Five
Dollars ($11,835). 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.”
9.
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 |
3,5 |
Failure
to submit or modify the CP, if required, within the given time period. |
$500
per week late, or part thereof. |
4 |
For
violations of discharge limitations during the Compliance Demonstration
period. |
$500
per violation. |
4 |
Failure
to submit notification to IDEM that an effluent exceedance has occurred,
within 10 days of becoming aware that the Compliance Demonstrations cannot be
achieved. |
$250
per violation. |
4,5 |
Failure
to submit or modify the Additional Action Plan, if required, within the given
time period. |
$250
per week late, or part thereof. |
5 |
Failure
to meet any milestone date set forth in the approved CP or Additional Action
Plan. |
$500
per week late, or part thereof. |
6 |
Failure
to submit to IDEM a written report of progress or completion for each
milestone date included in the CP or Additional Action Plan. |
$250
per violation |
10.
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.
11.
Civil
and stipulated penalties are payable by check to the “Environmental Management
Special Fund.” Checks shall include the
Case Number 2015-22987-W of this action and shall be mailed to:
Office
of Legal Counsel |
Indiana
Department of Environmental Management |
IGCN,
Rm N1307 |
100
North Senate Avenue |
Indianapolis,
IN 46204 |
12.
This
Agreed Order shall apply to and be binding upon Respondent and 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.
13.
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.
14.
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.
15.
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.
16.
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 permit or any applicable Federal or State law or regulation.
17.
Complainant
does not, by its 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.
18.
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 NOV.
19.
Nothing
in this Agreed Order shall prevent IDEM [or anyone acting on its behalf] from
communicating with the United States Environmental Protection Agency (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 EPA
or any other agency or entity.
20.
This
Agreed Order shall remain in effect until Respondent has complied with all 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 |
Stella-Jones Corporation |
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By:
________________________ |
By: ________________________ |
Mary E. Hoover, Chief |
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Enforcement Section |
Printed:
______________________ |
Surface
Water, Operations and |
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Enforcement
Branch |
Title:
________________________ |
Office
of Water Quality |
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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 September 14,
2015_ |
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Bruno
Pigott |
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Assistant Commissioner |
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Office of Water Quality |