STATE
OF INDIANA |
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BEFORE
THE INDIANA DEPARTMENT |
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COMMISSIONER
OF THE DEPARTMENT Complainant, v. Air Products and Chemicals Inc., 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.
5.
IDEM
has jurisdiction over the parties and the subject matter of this action
pursuant to IC 13-30-3.
6.
Pursuant
to IC 13-30-3-3, IDEM issued a Notice of Violation (NOV) via Certified
Mail/personal service to:
Seifi Ghasemi,
President |
CT
Corporation System, Registered Agent |
Air Products
and Chemicals Inc. |
Air Products
and Chemicals Inc. |
7201 Hamilton
Blvd |
150 West
Market Street, Suite 800 |
Allentown, PA
18195-9642 |
Indianapolis,
IN 46204 |
7.
During
an investigation including an inspection on September 12, 2019 conducted by a
representative of IDEM, violations were found, as described below.
8.
Pursuant
to IC 13-18-4-5, a person may not: (1) throw, run, drain, or otherwise dispose;
or (2) cause, permit, or suffer to be thrown, run, drained, allowed to seep, or
otherwise disposed; into any of the streams or waters of Indiana any organic or
inorganic matter that causes or contributes to a polluted condition of any of
the streams or waters of Indiana.
Pursuant
to IC 13-30-2-1(1), it is unlawful for any person to discharge, emit, cause or
allow any contaminant or waste, including any noxious odor, either alone or in
combination with contaminants from other sources in 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 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.
9.
Pursuant
to 327 IAC 5-2-2, any discharge of pollutants into waters of the state is
prohibited unless in conformity with a valid NPDES permit obtained prior to the
discharge.
Respondent
discharged ammonia-laden wastewater to Pipe Creek, contributing to a fish kill,
without a valid NPDES permit, in violation of 327 IAC 5-2-2.
10.
A
Settlement Conference was held on June 17, 2020, to settle on Order Actions.
11.
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 8 and 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.
Immediately
upon the Effective Date, Respondent shall immediately cease and desist all activities
that have a potential to introduce pollutants to storm water and discharge from
the site to waters of the State.
3.
Within
30 days of the Effective Date, Respondent shall develop and submit Standard
Operation Procedures (SOPs) for Operations, specifically proper removal, storage and disposal of ammonia-water generated during
chiller compressor maintenance.
4.
Within 30 days of the
Effective Date, Respondent shall develop and implement a Spill Control and
Containment Plan.
5.
Within 45 days of the
Effective Date, Respondent shall submit to IDEM a description of how all
process wastewater, non-process wastewater, and storm water exposed to
industrial activity is managed at the Site.
6.
All
submittals required by this Agreed Order, unless Respondent is notified
otherwise in writing by IDEM, shall be sent to:
David
Koehler, Enforcement Case Manager |
Office
of Water Quality – IGCN 1255 |
Indiana
Department of Environmental Management |
100
North Senate Avenue |
Indianapolis,
IN 46204-2251 |
7.
Respondent
is assessed and agrees to pay a civil penalty of Fifteen Thousand Seven Hundred
Fifty Dollars ($15,750). 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.”
8.
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 |
2 |
Failure
to cease and desist activities that have a potential to introduce pollutants
to storm water and discharge to waters of the State. |
$500
per discharge. |
3 |
Failure
to submit the SOPs within the required time period. |
$250
per week late, or part thereof. |
4 |
Failure
to submit the Spill Control and Containment Plan within the required time period. |
$250
per week late, or part thereof. |
5 |
Failure
to submit the description of how all process wastewater, non-process
wastewater, and storm water exposed to industrial activity is managed at the
Site |
$250
per week late, or part thereof. |
9.
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.
10.
Civil
and stipulated penalties are payable by check to the “Environmental Management
Special Fund.” Checks shall include the Case Number 2019-26875-W of this action
and shall be mailed to:
Indiana
Department of Environmental Management |
Accounts
Receivable |
IGCN, Room
1340 |
100 North
Senate Avenue |
Indianapolis,
Indiana 46204 |
11.
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.
12.
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.
13.
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.
14.
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.
15.
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.
16.
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.
17.
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.
18.
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.
19.
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 |
Air Products and Chemicals Inc. |
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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 23, 2020 |
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Martha
Clark Mettler |
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Assistant
Commissioner |
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Office
of Water Quality |