STATE
OF INDIANA |
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BEFORE
THE INDIANA DEPARTMENT |
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COMMISSIONER
OF THE DEPARTMENT Complainant, v. giles chemicals, division of premier magnesia Llc, 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.
Giles
Chemicals, Division of Premier Magnesia LLC (Respondent), owns and operates the
facility, located at 200 Brown Street, Greendale, Dearborn County, Indiana (the Site).
3.
National
Pollutant Discharge Elimination System (NPDES) General Permit No. ING250000
(the Permit) became effective on November 8, 2015 to regulate discharges of
once-through noncontact cooling wastewater into surface waters of the State of
Indiana.
Respondent
was assigned NPDES General Permit Approval Number ING250110 (the Permit
Approval) to discharge once-through noncontact cooling wastewater, in
accordance with the terms and conditions of the Permit, into Tanners Creek, via
Outfall 001.
As
the recipient of NPDES General Permit Approval Number ING250110, Giles
Chemicals, Division of Premier Magnesia LLC is also known as the permittee.
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:
Brian Coffey |
Corporation
Services Company |
Plant Manager |
Registered
Agent |
Giles
Chemicals, Division of Premier |
135 North
Pennsylvania, Suite 1610 |
Magnesia LLC |
Indianapolis,
Indiana 46204 |
200 Brown Street |
|
Greendale,
Indiana 47025 |
6.
During
an investigation conducted by a representative of IDEM, violations were found,
as described below.
7.
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 IC 13 and is grounds for
enforcement action by IDEM.
8.
Pursuant
to Part 2.0 of the Permit, all permittees must control discharges as necessary
to meet numeric and narrative water quality standards in the receiving water
for any discharges authorized by this permit.
Pursuant
to Part 2.1, Table 3, of the Permit and Attachment 2, Table 3 of the Permit
Approval, the permittee is authorized to discharge with a maximum water
temperature of 57 degrees Fahrenheit (0F).
As
documented on the December 2018 Discharge Monitoring Report (DMR) and the
Monthly Monitoring Report (MMR), the discharge from Outfall 001 exceeded the
monthly maximum water temperature by seven degrees Fahrenheit (7 0F),
in violation of Part 2.0 and Part
2.1, Table 3, of the Permit, and Attachment 2, Table 3 of the Permit Approval.
9. Pursuant
to Part 2.1, Table 2, of the Permit and Attachment 2, Table 2 of the Permit
Approval, pH is required to be sampled two times a month as a grab sample.
Pursuant
to Part 3.2 of the Permit, measurement frequency of each parameter is
identified in Section 2.1 of the Permit.
As
documented on the November 2018 DMR and MMR, the discharge from Outfall 001 was
not sampled for pH, in violation of Part 2.1, Table 2, of the Permit and
Attachment 2, Table 2 of the Permit Approval.
10. Pursuant
to Part 3.6 of the Permit, for each measurement or sample taken pursuant to the
requirements of the Permit, the discharger shall record the following
information:
a. the
place (outfall number), date, and time of sampling;
b. the person(s) who performed the sampling
measurements;
c. the dates and times the analyses were
performed;
d. the person(s) and laboratory who
performed the analyses;
e. the analytical techniques or methods
used; and
f. the results of all required analyses
and measurements.
As
noted during the inspection on December 18, 2018, the Dissolved Oxygen and pH laboratory
bench sheets were found deficient, in violation of Part 3.6 of the Permit.
11.
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 8 through 10 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 rules and statutes listed in the findings above at issue.
3.
Immediately
upon the Effective Date, Respondent shall complete the laboratory bench sheets
as specified in Part 3.6 of the Permit.
4.
Immediately
upon the Effective Date, Respondent shall monitor and report the parameters
discharged from Outfall 001 as required by Part 2.0 of the Permit and
Attachment 2 of the Permit Approval.
5.
Immediately
upon the Effective Date, Respondent shall submit DMRs and MMRs, via NetDMR, no
later than the 28th day of the month following each completed
monitoring period.
6.
Within
15 days of the Effective Date, Respondent shall submit a corrected DMR and MRO
for October and November 2018 with the correct NODI code for chlorine, total
residual. Respondent shall also continue to use the correct NODI Code in future
DMR and MRO submittals.
7.
Upon the Effective Date, Respondent shall
demonstrate 12 consecutive months of compliance (Compliance Demonstration) with
the terms and conditions of the Permit.
Specifically with monitoring and reporting as required by Order Paragraph 4.
8.
Within 30 days after a monthly maximum
water temperature exceedance at Outfall 001 during the Compliance Demonstration
period, Respondent shall submit a Compliance Plan (CP).
The CP shall identify actions Respondent will take to
achieve and maintain compliance with the maximum water temperature required by Part 2.0 of the
Permit and Attachment 2 of the Permit Approval.
The
CP shall include an implementation and completion schedule, including specific
milestone dates.
9. The plan required by Order Paragraph 8
is subject to IDEM approval. In the event IDEM determines that the CP submitted
by Respondent is deficient or otherwise unacceptable, Respondent shall revise
and resubmit the CP to IDEM in accordance with IDEM’s notice. After three
submissions of such plan by Respondent, IDEM may seek civil enforcement of this
Order.
10. Respondent,
upon receipt of written notification from IDEM, shall immediately implement the
approved plan and adhere to the milestone dates therein. The approved CP shall
be incorporated into the Agreed Order and shall be deemed an enforceable part
thereof.
Following
completion of the actions included in the CP, the 12 month Compliance
Demonstration, as specified in Paragraph 7 above, will re-start. Failure to
achieve compliance at the conclusion of work under a CP may subject Respondent
to additional enforcement action.
11. Beginning
with the first calendar quarter following the Effective Date, Respondent shall
submit to IDEM a written progress report within 10 days of the end of each
calendar quarter, which identifies the compliance actions implemented during
each quarter ending on March 31st, June 30th, September
30th, and December 31st until completion of the CP.
12.
All
submittals required by this Agreed Order, unless Respondent is notified
otherwise in writing by IDEM, shall be sent to:
Linda
McClure, Enforcement Case Manager |
Office
of Water Quality – IGCN 1255 |
Indiana
Department of Environmental Management |
100
North Senate Avenue |
Indianapolis,
IN 46204-2251 |
13.
Respondent
is assessed and agrees to pay a civil penalty of Eight Thousand Five Hundred
Dollars ($8,500). 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.”
14.
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 |
Failure
to complete laboratory bench sheets as required. |
$150
per week late, or part thereof. |
4 |
Failure
to monitor and report as required by the Permit. |
$250
per week late, or part thereof. |
5 |
Failure
to submit DMRs and MMRs by the 28th day of the month following each completed
monitoring period. |
$250
per week late, or part thereof. |
6 |
Failure
to correct DMR and MRO for October and November 2018 with the correct NODI
Codes. |
$150
per week late, or part thereof. |
7 |
For
violations of terms and conditions of the Permit during the Compliance
Demonstration. |
$400
per violation |
8 |
Failure
to submit the CP within the required time period. |
$250
per week late, or part thereof. |
9 |
Failure
to modify the CP, if required, within the given time period. |
$500
per week late, or part thereof. |
10 |
Failure
to meet and/or implement any milestone date set forth in the approved CP. |
$500
per week late, or part thereof. |
11 |
Failure to submit to IDEM a written
report of progress within 10 days of each calendar quarter. |
$150
per week late, or part thereof. |
15.
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.
16.
Civil
and stipulated penalties are payable by check to the “Environmental Management
Special Fund.” Checks shall include the Case Number 2019-25947-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 |
17.
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.
18.
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.
19.
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.
20.
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.
21.
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.
22.
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.
23.
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.
24.
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.
25.
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.
TECHNICAL
RECOMMENDATION: |
RESPONDENT: |
Department
of Environmental Management |
Giles
Chemicals, Division of Premier Magnesia LLC |
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By:__________________________ |
By:________________________ |
Samantha K.
Groce, 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 on September
25, 2019 |
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Martha
Clark Mettler |
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Assistant
Commissioner |
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Office
of Water Quality |