STATE
OF INDIANA COUNTY
OF MARION |
) ) ) |
SS: |
BEFORE
THE INDIANA DEPARTMENT OF
ENVIRONMENTAL MANAGEMENT |
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COMMISSIONER
OF THE DEPARTMENT OF
ENVIRONMENTAL MANAGEMENT, Complainant, v. THE DETROIT SALT COMPANY, LLC, Respondent. |
) ) ) ) ) ) ) ) ) ) |
Case No. 2019-25991-Q |
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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.
The
Detroit Salt Company, LLC (Respondent) owns and/or operates the Fort Wayne Salt
Transfer, for bulk rock salt stockpile distribution, located at 7024 Parrot
Road, New Haven, Allen County, Indiana (the Site).
Respondent
is a subsidiary of Kissner Group Holdings, LP, which owns and operates The
Detroit Salt Company, LLC, Detroit, Michigan salt mine. Respondent stockpiles
and sells salt from the mine throughout the Midwest for deicing and other
seasonal industrial applications under the brand name of Central Salt, LLC,
which is also a subsidiary of Kissner Group Holdings, LP. The salt stockpile is
located at Fort Wayne Salt Transfer, which is located in the shipping yard
owned and operated by the Norfolk Southern Railway Company.
3.
IDEM
has jurisdiction over the parties and the subject matter of this action
pursuant to IC 13-30-3.
4.
Pursuant
to IC 13-30-3-3, on May 29, 2019, IDEM issued a Notice of Violation via
Certified Mail to:
Emanuel Z.
Manos, President |
CT Corporation
System, Registered Agent for: |
The Detroit
Salt Company, LLC |
The Detroit
Salt Company, LLC |
12841 Sanders
Street |
150 West
Market Street |
Detroit,
MI 48217-1407 |
Suite 800 |
|
Indianapolis,
IN 46204 |
5.
During
a complaint investigation on December 18, 2019, and a follow-up inspection on
January 3, 2019, conducted by representatives of IDEM, the following violations
were found:
6.
Pursuant
to 327 Indiana Administrative Code (IAC) 2-1-6(a)(1), 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; and
E.
are in amounts sufficient to be acutely
toxic to, or to otherwise severely injure or kill aquatic life, other animals,
plants, or humans.
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 IC 13-18-4-1 or IC 13-18-4-3.
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.
As
noted in IDEM’s Emergency Response Incident Report number 84558, on December
19, 2018, staff from IDEM’s Office of Land Quality, Emergency Response Section
observed and documented that Respondent discharged and/or allowed the discharge
of storm water contaminated with the salt/dye mixture from the Site. The
discharge from the Site impacted waters of the State, in an amount sufficient
to be unsightly or deleterious that produced color, odor or other conditions in
such a degree to create a nuisance, and/or which was in amounts to be acutely
toxic to, or otherwise severely injure or kill aquatic life, or other animals,
plants, or humans. The origin of the discharge was determined to be from
Respondent’s stockpile of salt/dye mixture at the Site, in violation of 327 IAC
2-1-6(a)(1), IC 13-18-4-5, and IC 13-30-2-1(1).
7.
Pursuant
to 327 IAC 5-2-2, any discharge of pollutants into waters of the State, as a
point source discharge, is prohibited unless in conformity with a valid
National Pollutant Discharge Elimination System (NPDES) permit obtained from
IDEM prior to the discharge.
At the time of the Site investigation on
December 19, 2018, and during a follow- up inspection on January 3, 2019, staff
from IDEM’s Office of Land Quality, Emergency Response Section, and the Office
of Water Quality, Storm Water Program, observed and noted that the salt/dye
mixture, which was in contact with storm water, was discharging from the Site.
Respondent failed to obtain the required general storm water NPDES permit prior
to discharging the storm water contaminated with the salt/dye mixture from the
Site, to waters of the State, including a ditch that flows to an unnamed
tributary that flows to the Maumee River, in violation of 327 IAC 5-2-2.
8.
Pursuant
to 327 IAC 2-6.1-4(15), a “spill” means any unexpected, unintended, abnormal,
or unapproved dumping, leakage, drainage, seepage, discharge or other loss of
petroleum, hazardous substances, extremely hazardous substances, or other
objectionable substances.
The
discharge of the storm water containing the salt/dye mixture without permit
coverage under 327 IAC 15-6 (Rule 6) or other applicable permits to waters of
the State, constitutes a spill.
9.
Pursuant
to 327 IAC 2-6.1-5 and 327 IAC 2-6.1-7, any person who operates, controls, or
maintains any facility from which a spill occurs shall, upon discovery of a
reportable spill to the soil or surface waters of the state, do the following:
(1)
Contain
the spill, if possible, to prevent additional spilled material from entering
the waters of the state.
(2)
Undertake
or cause others to undertake activities needed to accomplish a spill response.
(3)
As
soon as possible, but within two (2) hours of discovery, communicate a spill
report to the Department of Environmental Management.
(4)
Submit
to the Department of Environmental Management a written copy of the spill
report if requested in writing by the department.
(5)
Except
from modes of transportation other than pipelines, exercise due diligence and
document attempts to notify the following:
(A) For
spills to surface water that cause damage, the nearest affected downstream
water user located within ten (10) miles of the spill and in the state of
Indiana; and
(B) For
spills outside the facility boundary, the affected property owner or owners,
operator or operators, or occupant or occupants.
On
December 19, 2018, and on January 3, 2019, inspections were conducted by IDEM’s
Office of Land Quality, Emergency Response Section, and the Office of Water
Quality, Storm Water Program. IDEM staff observed and documented that
Respondent, upon becoming aware the discharge of storm water contaminated with
the salt/dye mixture from the Site, failed to undertake required activities
needed to accomplish a spill response, failed to contain and clean up the
spill, and failed to communicate a spill report to IDEM within two (2) hours of
discovery of the spill of the discharge to waters of the State, in violation of
327 IAC 2-6.1-5 and 327 IAC 2-6.1-7.
10.
Pursuant to 327 IAC 15-2-5, any person
responsible for the operation of a facility from which a point source discharge
of pollutants and/or storm water, associated with industrial activity and meets
the general and applicability requirements of 327 IAC 15-2-2(a)(1), 15-2-3, and
15-6-2, must comply with, among other things, submission of a Notice of Intent
(NOI) letter to the commissioner (of IDEM) that complies with this section, 327
IAC 15-3, and the additional requirements of 327 IAC 15-2-5, 15-6-5, 15-6-7,
15-6-7.3, and 15-6-7.5.
Pursuant
to 327 IAC 15-3-3(a), any person proposing a new discharge that will be subject
to a general permit under 327 IAC 15-6 and 327 IAC 15-7, or 327 IAC 15-14 shall
submit an NOI letter and additional information, as required by the applicable
general permit rule at least 180 days before the date on which the discharge is
to commence unless permission for a later date has been granted by the
commissioner (of IDEM) or is established in the applicable general permit rule.
Pursuant to 327 IAC 15-6-1, the purpose
of this rule is to establish requirements for storm water discharges exposed to
industrial activity that are composed entirely of storm water and allowable
non-storm water so that public health, existing water uses, and aquatic biota
are protected. The requirements under this rule apply to all facilities that
meet the requirements contained in 327 IAC 15-6-2(a), and therefore must comply
with, among other things, the requirements of 327 IAC 15-2-5, 15-6-1, 15-6-7,
15-6-7.3, and 15-6-7.5.
Pursuant to 327 IAC 15-6-2(a),
facilities involved in salt mining and storage, which meet the industrial NPDES
general permit rule applicability requirements under 327 IAC 15-2-3, are
required to comply with the NPDES general permit rule for storm water
discharges exposed to industrial activities.
Pursuant to 327 IAC 15-6-5(4), in addition to the NOI letter
requirements under 327 IAC 15-3, information regarding the identification of
the number and location of each outfall where storm water exposed to industrial
activity discharges to waters of the State, including a narrative description
of the industrial activity associated with the drainage area of each identified
outfall, must be submitted within the NOI letter.
Pursuant to 327 IAC 15-6-6, all information required under
327 IAC 15-3 and section 5 of this rule shall be submitted to the commissioner
(of IDEM) in accordance with 327 IAC 15-3-3. For newly constructed industrial
facilities, the NOI letter shall be submitted 90 days prior to startup of
industrial operations.
During the inspection on January 3,
2019, staff from IDEM’s Office of Water Quality, Storm Water Program, observed
and noted that the nature of business conducted at the Site qualifies
Respondent for general industrial storm water coverage. However, the NOI letter
was not submitted at least 90 days before the date on which the discharge was
to commence. In addition to general surface run-off, two separate point source
discharges of storm water contaminated with the salt/dye mixture from the Site
were identified as Outfall 001 and Outfall 002 in IDEM’s inspection report
issued on January 23, 2019. Respondent failed to submit a complete NOI letter
and obtain coverage for industrial storm water from IDEM prior any discharge
associated with industrial activities at the Site, in violation of 327 IAC
15-2-5, 327 IAC 15-3-3(a), 327 IAC 15-6-1, 327 IAC 15-6-2(a), and 327 IAC
15-6-5(4).
On
February 14, 2019, Respondent submitted a complete NOI letter. On May 8, 2019, IDEM issued a Notice of
Sufficiency (NOS), which included the general permit identification number
INRM02546. General Permit #INRM02546 will
be valid for five (5) years from the permit issue date of February 14, 2019,
which complies with the requirements of the NPDES general permit rule 327 IAC
15-6. Therefore, Respondent has obtained coverage for industrial storm water
from IDEM for the discharge associated with industrial activities at the Site,
in accordance with 327 IAC 15-2-5, 327 IAC 15-3-3(a), 327 IAC 15-6-1, 327 IAC
15-6-2(a), and 327 IAC 15-6-5(4).
11.
Pursuant
to 327 IAC 15-6-7(a), the person having financial responsibility or operational
control for a facility regulated under this rule shall develop, implement,
update, and maintain a storm water pollution prevention plan (SWP3) in
accordance with the rule.
Respondent failed to develop, implement,
update, and maintain a SWP3 before the date on which the discharge associated
with industrial activities from the Site commenced, in violation of 327 IAC
15-6-7(a).
On
May 28, 2019, Respondent developed and submitted a copy of the SWP3 to IDEM.
Further, as a requirement of the SWP3, on June 6, 2019, Respondent submitted
the Certification Checklist to IDEM, in accordance with 327 IAC
15-6-7(a).
12.
On
January 23, 2019, May 13, 2019, and August 5, 2019, IDEM issued Inspection Summary
Violation Letters outlining corrective actions Respondent was required to take
to comply with above noted violations. Respondent has returned to compliance
with corrective actions required by the above noted Inspection Reports, and in
accordance with the revised timeline that was submitted by Respondent on April
26, 2019.
13.
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 Paragraphs 6 through 11 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 Notice of Violation and
prior to the Effective Date.
2.
Respondent
shall comply with rules and statutes listed in the findings above at issue.
3.
Beginning
on the Effective Date and continuing until the successful completion of the
requirements of the Agreed Order, Respondent shall, at all times, operate the Site
as efficiently and effectively as possible, in accordance with rules and
statutes listed in the findings above.
4.
Immediately,
upon the Effective Date, if there is evidence of a future discharge of storm
water contaminated with the salt/dye mixture from the Site, Respondent shall
immediately notify IDEM’s 24-Hour Spill Hotline (888) 223-7745.
Respondent shall conduct a spill
response and ensure that within two (2) hours of discovery of a spill it is
communicated to IDEM, Homeland Security, and/or all other local agencies, as
required by law.
5.
For
the purposes of this Agreed Order, immediately upon the Effective Date,
Respondent shall continue to implement and comply with its SWP3, as part of the
Rule 6 Permit, which complies with 327 IAC 15-6-7.
In the event that IDEM determines that
Rule 6 NOI submitted by Respondent on February 14, 2019 is deficient or
otherwise unacceptable because Respondent changed its operations in any way
that impacts the Rule 6 NOI, Respondent shall revise and resubmit the NOI to
IDEM, in accordance with IDEM’s notice(s) in order to obtain the appropriate
permit coverage for the Site.
6.
No
later than 365 days (one year) after the Rule 6 Permit was issued by IDEM on
February 14, 2019, and for the purposes of this Agreed Order, on the first
measurable storm event, as defined by 327 IAC 15-6-4(15), Respondent shall
sample and analyze all storm water outfalls. Sampling shall include, at a
minimum, the eight (8) parameters required by 327 IAC 15-6-7.3(a)(1), and Chloride. If it is determined that the sampling
data results do not satisfy the monitoring requirements for run-off from the
Site, IDEM may require additional sampling, in accordance with 327 IAC
15-6-7.3(a)(2).
Upon completion of the provisions of
this Agreed Order, Respondent shall continue to sample and analyze the storm
water discharge from the Site annually thereafter, as required by 327 IAC
15-6-7.3(1), which complies with all monitoring requirements of 327 IAC
15-6-7.3.
7.
Respondent
shall complete and submit a storm water discharge monitoring report (State Form
53590) to IDEM within 30 days of the laboratory analysis of a storm water
sampling event, in conjunction with laboratory analysis, and all chain-of-custody
documentation, as required by 327 IAC 15-6-7.3(b)(2). The storm event from
which the sample is taken must occur within 365 days of February 14, 2019 for
the first year of the permit coverage, and at least seventy-two (72) hours from
the previous measurable storm event. If no discharge occurs from Outfall 002
during the permit year, Respondent shall submit a storm water discharge
monitoring report indicating that no discharge has occurred.
8.
Within
365 days (one year) of the initial NOI submittal date of February 14, 2019,
Respondent shall submit an Annual Report. Subsequent Annual Reports shall be
provided no later than 365 days (one year) from the previous report in years
two (2) through five (5), as required by 327 IAC 15-6-7.5. Annual Reports must
contain the following information:
A.
Any
changes to the original NOI letter;
B.
Any
changes to the facility, the facility’s operations, or industrial activities;
C. During the second through fifth years of
permit coverage, a copy of the comparison of all sampling data results included
in the facility’s SWP3, and all other data required under section 7(b)(9) of
this rule; and
D. Any additional best management practices
(BMPs) implemented or corrective measures taken, as a result of sampling data
results.
Respondent shall within 30 days after
laboratory analyses have been completed shall submit the sampling results to
the commissioner at the address specific in section 8.5:
Attention: Storm Water Program |
Indiana Department of Environmental
Management |
Office of Water Quality |
IGCN 1255 |
100 N. Senate Avenue |
Indianapolis, IN 46204 |
9.
All
submittals required by this Agreed Order, unless Respondent is notified
otherwise in writing by IDEM, shall be sent to:
Aletha Lenahan,
Enforcement Case Manager |
Office
of Water Quality – IGCN N1255 |
Indiana
Department of Environmental Management |
100
N. Senate Avenue |
Indianapolis,
IN 46204-2251 |
10.
Respondent
is assessed and agrees to pay a civil penalty of Eight Thousand, Three Hundred Seventy-Five
Dollars ($8,375). 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.”
11.
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 operate and maintain the Site as efficiently and effectively as possible,
in accordance with rules and statutes. |
$500 per violation |
4 |
Failure
to conduct a spill response, when required. |
$500 per violation |
4 |
Failure
to within two (2) hours of discovery of a spill it is communicated to IDEM,
Homeland Security, and/or all other local agencies, as required by law. |
$500 per violation |
5 |
Failure
to implement and comply with its SWP3, as part of the Rule 6 Permit. |
$500 per week late |
6 |
Failure
to sample and analyze all storm water outfalls |
$500 per week late |
7 |
Failure
to complete and submit a storm water discharge monitoring report |
$250 per week late |
8 |
Failure
to submit Annual Reports for the Rule 6 Permit, within the given time frames. |
$250 per week late |
12.
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.
13.
Civil
and stipulated penalties are payable by check to the “Environmental Management
Special Fund.” Checks shall include the Case Number
2019-25991-Q of this action and
shall be mailed to:
Indiana
Department of Environmental Management |
Accounts
Receivable |
IGCN,
Room N1340 |
100
N. Senate Avenue |
Indianapolis,
IN 46204 |
14.
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.
15.
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.
16.
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.
17.
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.
18.
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.
19.
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.
20.
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.
21.
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.
22.
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 |
The Detroit Salt Company, 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 November 14,
2019 |
|
Martha
Clark Mettler |
|
Assistant
Commissioner |
|
Office
of Water Quality |