STATE OF
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BEFORE THE
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COUNTY OF
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ENVIRONMENTAL
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COMMISSIONER
OF THE DEPARTMENT |
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OF
ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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Case No. 2020-27409-S |
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LEHIGH
CEMENT COMPANY LLC, |
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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 Lehigh Cement Company LLC (“Respondent”), which owns and operates the solid
waste land disposal facility with SW Restricted Waste Site Type I Permit No.
47-05, located at 180 North Meridian Road in Mitchell, Lawrence County, Indiana
(“Site”).
3.
IDEM has jurisdiction over the parties and the
subject matter of this action.
4.
Pursuant to IC 13-30-3-3, IDEM issued a Notice
of Violation (“NOV”) via United States Postal Service to:
Christopher
Ward, President of |
Lehigh
Cement Company LLC |
300
E. John Carpenter Freeway, Suite 1645 |
Irving,
Texas 75062 |
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Corporation
Service Company, Registered Agent for |
Lehigh
Cement Company LLC |
135
North Pennsylvania Street, Suite 1610 |
Indianapolis,
Indiana 46204 |
5.
Respondent is a manufacturer and producer of
cement and cement products.
6.
During
an investigation including an
inspection on September 23, 2020
conducted by a representative of IDEM, the following violations were found:
a. Pursuant to 329 Indiana Administrative Code
(“IAC”) 10-13-4(c) and Operational
Permit Conditions D8 and D10, the permittee shall construct and operate
a solid waste land disposal facility in accordance with the permit. The
permittee must meet the following requirements regarding leachate storage at the
facility: (b)
Maintain the leachate level in the sumps and manholes at or below the approved
depth; D10, the permittee must contain all leachate and water that has been in
contact with waste within lined Cells 1 and 2 and the leachate collection system
(including the leachate storage pond).
As noted during
the inspection, the leachate in the west sump pump was not contained in the
leachate collection system or maintained at or below the approved maximum depth
of 12 inches above the leachate collection pipe. Due to pump failure after the
facility monthly inspection in August 2020, leachate overflowed up and out of
the sump and down an embankment uncontrolled until the September monthly
facility inspection.
b.
Pursuant to 329 IAC 10-28-15(a) and (b), any leachate on the surface of
restricted waste sites Type I and Type II and municipal solid waste landfills
must be immediately managed or controlled to prevent off-site migration; and
surface movement of leachate past a point of fifty (50) feet outside of the
solid waste boundary is prohibited except as specified in the facility permit.
As noted
during the inspection, leachate filled
the entire sump casing until it was discovered flowing out of the top, and onto
the ground. The release flowed down an embankment greater than 50-feet away
from the RWS. The release continued for an extended amount of time without
being managed or controlled.
The pump was repaired at the September monthly facility inspection when
the release was discovered.
7.
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 approved by Complainant or Complainant’s delegate
and has been received by Respondent. This Agreed Order shall have no force or
effect until the Effective Date.
2.
Respondent shall comply with the rules and permit conditions listed in
the findings of fact above.
3.
Within sixty
(60) days of the Effective Date, Respondent shall comply with 329 IAC 10-13-4(c) and Permit Conditions D8
and D10. Specifically, Respondent shall install and commence operation
of remote and automated water level monitoring in the two leachate sumps, which
will help ensure proper leachate sump levels.
The monitors shall be configured to send an alarm to a mobile device or
some other device that triggers a response from Respondent’s personnel.
4.
Within ten (10) days of commencing operation of
the monitoring devices required by Paragraph II.3., Respondent shall submit
notification (“Notice”) to IDEM of the completion of the monitor installation.
5.
Commencing on the Effective Date and continuing
until the Notice submittal date, Respondent shall comply with 329 IAC 10- 13-4(c) and Permit Conditions D8 and
D10. Specifically, Respondent shall increase the frequency of leachate sump
pump inspections conducted by the facility
to twice monthly. Upon submittal of the
Notice, Respondent may revert back to leachate sump
pump inspections on a once monthly basis.
6.
Within
fifteen (15) days of submitting the Notice, Respondent shall develop a SOP regarding leachate release prevention
that minimizes the potential for releases due to the mechanical or electrical
failure of the leachate sumps submit to IDEM. The SOP shall include information related to
the proper functionality of the sump water level monitors installed in
accordance with Paragraph II.3 as well as describing spill response measures
and include a periodic test of the sump alarm.
7.
All submittals required by this Agreed Order,
unless IDEM notifies the Respondent otherwise in writing, shall be sent
to:
Jodi
Pisula, Enforcement Case Manager |
Office
of Land Quality |
Indiana
Department of Environmental Management |
100
North Senate Avenue |
Indianapolis,
IN 46204-2251 |
8.
Pursuant to IC 13-30-4-1, Respondent is
assessed and agrees to pay a civil penalty of Eight Thousand Two Hundred Dollars
($8,200.00). Said penalty amount shall be due and payable to the “Environmental
Management Special Fund” within thirty (30) days of the Effective Date; the thirtieth
day being the “Due Date.”
9.
In the event the terms and conditions of the
following paragraphs are violated, Complainant may assess, and Respondent shall
pay stipulated penalties in the following amounts:
Paragraph |
Stipulated Penalty |
Order
paragraph #3 |
$100.00
per week |
Order paragraph
#4 |
$100.00
per week |
Order
paragraph #5 |
$100.00
per week |
Order
paragraph #6 |
$100.00
per week |
10.
Stipulated penalties shall be due and payable
no later than the thirtieth day after Respondent receives written notice that
Complainant has determined a stipulated penalty is due; the thirtieth day being
the “Due Date.” Complainant 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 Complainant’s right to collect
such stipulated penalty or preclude Complainant from seeking additional relief
against Respondent for violation of this Agreed Order. Neither assessment nor
payment of stipulated penalties shall preclude Complainant 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 of this action and shall be mailed to:
Indiana
Department of Environmental Management |
Accounts
Receivable |
IGCN,
Room 1340 |
100
North Senate Avenue |
Indianapolis,
IN 46204 |
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 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. Such
interest shall be payable to the Environmental Management Special Fund and
shall be payable to IDEM in the manner specified in Paragraph 10, above.
13.
Signatories to this Agreed Order certify that
they are fully authorized to execute this Agreed Order and legally bind the
party they represent.
14.
This Agreed Order shall apply to and be binding
upon Respondent and all successors and assigns. Respondent shall provide a copy
of this Agreed Order, if in force, to any subsequent owners, successors, or
assigns before ownership rights are transferred.
15.
No change in ownership, corporate, or
partnership status of Respondent shall in any way alter the Respondent’s status
or responsibilities under this Agreed Order.
16.
Respondent shall ensure that all contractors,
firms, and other persons performing work under this Agreed Order comply with
the terms of this Agreed Order.
17.
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.
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 the obligation
to comply with the requirements of any applicable permits or any applicable
Federal or State laws or regulations.
19.
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.
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 violations specified in the NOV.
21.
Nothing in this Agreed Order shall prevent IDEM
or anyone acting on its behalf from communicating with the U.S. Environmental
Protection Agency (U.S. 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 U.S. EPA or any
other agency or entity.
22.
This Agreed Order shall remain in effect until
IDEM issues a Resolution of Case letter to Respondents.
TECHNICAL
RECOMMENDATION: |
RESPONDENT: |
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Department of Environmental Management |
Lehigh
Cement Company LLC |
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Tracy
Crowther, Plant Manager |
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By: _________________________ |
By:
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Jennifer
Reno, Chief |
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Land
Enforcement Section |
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Compliance
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Title: ________________________ |
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Office of
Land 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 |
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For the Commissioner: |
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Signed 3/31/2021 |
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Peggy Dorsey, Assistant Commissioner |
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Office of Land Quality |
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