STATE OF INDIANA

COUNTY OF MARION

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BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v.

Air Products and Chemicals Inc.,

Respondent.

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Case No. 2019-26875-W

 

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.               Air Products and Chemicals Inc. (Respondent) operates a facility located at 2975 West Delphi Pike, Marion, Grant County, Indiana (the Site). The Site is adjacent to another facility, Central Indiana Ethanol LLC (CIE).

 

3.               CIE is authorized to discharge wastewater into Pipe Creek from Outfall 001 in accordance with the terms and conditions of its National Pollutant Discharge Elimination System (NPDES) Permit No. IN0062782. The Permit does not authorize the discharge of any process wastewater from Respondent.

 

4.               Respondent’s building roof downspouts are connected to a black perforated plastic pipe that goes into the ground to a PVC pipe. The PVC pipe connects to the effluent line of CIE, which ultimately discharges into the receiving stream Pipe Creek out of Outfall 001.

 

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.

 

During the inspection on September 12, 2019 as a result of a September 11, 2019, reported fish kill, a representative of Respondent indicated to IDEM that during maintenance of the CO2 chilling system, water is used to safely capture the ammonia used as a refrigerant by the chilling system. IDEM noted several hundred gallons, in plastic barrels and totes, labeled “Ammonia Water” outside the facility building. Respondent reported that prior to the fish kill on September 11, 2019, a contractor dumped an unknown amount of the “Ammonia Water” onto the ground outside the facility building where the black perforated pipe from the roof drains is located. A sample collected on September 12, 2019, of the water flow in Respondent’s PVC pipe (before it combines with CIE’s effluent) came back with an ammonia concentration of 96 mg/L. A sample collected from Pipe Creek upstream of the discharge location had an ammonia concentration below detection of the field kits. Another sample collected from CIE’s Outfall 001 into Pipe Creek had an ammonia concentration of 7 mg/L. The Respondent allowed dumping of ammonia-laden wastewater that reached the receiving stream and contributed to a fish kill, in violation of IC 13-18-4-5, IC 13-30-2-1(1), and 327 IAC 2-1-6(a)(1).

 

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.

 

By:__________________________

By:________________________

Samantha K. Groce, Chief

 

Water Enforcement Section

 

Surface Water, Operations &

Printed:_____________________

Enforcement Branch

 

Office of Water Quality

Title:_______________________

 

 

Date:________________________

Date:_______________________

 

 

COUNSEL FOR RESPONDENT:

 

 

 

By:________________________

 

 

 

Date:______________________

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS ___________ DAY OF ________________, 20___.

 

 

For the Commissioner:

 

 

Signed on September 23, 2020

 

Martha Clark Mettler

 

Assistant Commissioner

 

Office of Water Quality