|
STATE
OF INDIANA |
) |
|
BEFORE
THE INDIANA DEPARTMENT |
||
|
|
|||||
|
COMMISSIONER
OF THE DEPARTMENT Complainant, v. Polyjohn enterprises corporation, Respondent. |
) |
|
|||
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.
PolyJohn
Enterprises Corporation (Respondent), owns/operates the facility, located at
2500 Gaspar Avenue, Whiting, Lake County, Indiana (the Site).
3.
Respondent manufactures plastic plumbing fixtures with a
Standard Industrial Code of 3088. A No
Exposure Certificate was issued to the Respondent on April 4, 2011, with Permit
Number INRX00113, which expired on November 18, 2015. The facility is currently unpermitted for
discharge to surface waters of the State.
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 on February 5, 2021, a Notice of Violation (NOV)
via Certified Mail/personal service to:
|
John Camphouse |
Kenneth
Cooper, Registered |
|
Chief
Financial Officer |
AgentPolyJohn Real Estate LLC |
|
PolyJohn Real Estate LLC |
2500 Gaspar
Avenue |
|
2500 Gaspar
Avenue |
Whiting, IN
46394 |
|
Whiting,
IN 46394 |
|
The
name of the respondent has been changed in this document from the Notice of
Violation. The name of the owner of the
property, PolyJohn Real Estate LLC, was used in the
NOV. This document shall use the name of
the business which is PolyJohn Enterprises
Corporation.
6.
During
an investigation conducted by a representative of IDEM, violations were found,
as described below.
7.
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) 2-1.5-8(b)(1), all surface waters within the Great Lakes system at
all times and at all places, including waters within 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 inspections on July 21, 2020,
October 6, 2020, and April 6, and April 9, and May 5, 2021, IDEM staff observed
and documented that numerous, small, plastic chip had
been released to surface waters of the State on and adjacent to the Site,
in amounts sufficient to be unsightly or deleterious, in violation of IC
13-18-4-5, IC 13-30-2-1(1), and 327 IAC 2-1-6(a)(1).
8.
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.
During inspections on July 21, 2020, October
6, 2020, April 6, and April 9, 2021. IDEM
staff observed and documented that numerous, small,
plastic chip had been released to surface waters of the State through the
facility’s storm drainage system onto and adjacent to the Site without a valid
NPDES permit, in violation of 327 IAC 5-2-2.
An additional inspection was conducted on May 5, 2021, IDEM staff
observed no new release of plastic chip but observed evidence of the past releases.
Plastic chips in waterways reported during
earlier inspections appeared to have been removed in part. Further evidence of plastic chips was
observed in areas previous not inspected.
9.
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 with the manufacturing
of plastic plumbing fixtures 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 inspections on July 21, 2020, and October 6, 2020,
IDEM 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. Respondent failed to submit a complete NOI letter
and obtain coverage for industrial storm water from IDEM prior to 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).
10.
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).
11.
On
May 25, 2021, a Notice of Intent (NOI) for Storm Water Discharges Exposed to
Industrial Activity was submitted to IDEM via electronic mail. On June 29, 2021, IDEM determined that the
requirements for submitting a complete NOI were fulfilled.
12.
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 7 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 cease and desist any release or
discharge of pollutants from the Site to waters of the State or onto the ground
surface on and around the Site.
4.
Within 60 days of the
Effective Date, Respondent shall develop and submit to IDEM for approval a
Compliance Plan (CP) which identifies actions that Respondent has taken or shall take to
recover small plastic chips that have been released in and around the Site in
accordance with the approved CP. This CP shall include removal of plastic chips
from paved surfaces, paved drainageways, waterways, storm drains, and the
ground surface. The removal of plastic
chips from the ground surface shall be conducted in a manner that minimally
disturbs the ground surface to the extent possible. The CP must also discuss the preventative
measures that Respondent shall take to ensure that no unauthorized releases of
pollutants from its facility occurs in the future. The CP shall include a schedule with
milestone dates. Proof of disposal must
be documented and provided to the IDEM Case Manager within two weeks of
disposal. A final written report shall be submitted to IDEM within 30 days of
completion of implementation of the CP. The final report and evaluation of the
site for adequate removal of plastic chips will be subject to IDEM approval.
5.
Within
60 days of the Effective Date, Respondent shall develop a Storm Water Pollution
Prevention Plan (SWP3) for the facility. The Respondent’s development of a SWP3
should include careful evaluation and assessment of the facility and associated
operations.
The
SWP3 should identify potential and actual storm water pollutant sources and
determine best management practices and measures that will minimize the
pollutants transported in storm water run-off. The SWP3 shall be retained at
the facility and shall be updated as facility conditions change. The SWP3 must meet
the minimum requirements of Rule 6, including, but not limited to, addressing
the information requested in the May 12, 2021, Inspection Report, specifically:
The
plan must be completed and implemented on or before 120 days after the
Effective Date.
If
IDEM notifies a facility representative that their SWP3 is ineffective or
deficient, a facility representative must make the required changes to the SWP3
and submit the amended plan within 60 days of the written notification. The
SWP3 must be reviewed periodically and updated as relevant conditions at the
facility change.
6.
For
the purposes of this Agreed Order, immediately upon the Effective Date,
Respondent must comply with all other requirements of Rule 6. Respondent must
also implement and comply with its SWP3 upon submittal pursuant to paragraph 5
above. Upon submittal of the SWP3 pursuant to paragraph 5, Respondent shall
demonstrate six (6) consecutive months of compliance (Compliance Demonstration)
with the requirements of Rule 6, including, but not limited to, weekly visual
inspections of outfalls, no unpermitted discharges of pollutants, and
compliance with all reporting requirements, including submission of an annual
report. During the Compliance Demonstration,
Respondent shall be subject to stipulated penalties, as specified below, for
violations of the requirements of Rule 6 and any unpermitted discharges of
pollutants from the site.
7.
All
submittals required by this Agreed Order, unless Respondent is notified
otherwise in writing by IDEM, shall be sent to:
|
Patrick
Colcord, Enforcement Case Manager |
|
Office
of Water Quality – IGCN 1255 |
|
Indiana
Department of Environmental Management |
|
100
North Senate Avenue |
|
Indianapolis,
IN 46204-2251 |
8.
Respondent
is assessed and agrees to pay a civil penalty of Eleven Thousand Three Hundred
Fifty Dollars ($11,350). 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.”
9.
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 immediately cease and desist the release of objectionable plastic chips
from its facility. |
$400
per violation |
|
4 |
Failure
to submit a Compliance Plan with 60 days of the effective date of the Agreed
Order. |
$250
per week late, or part thereof. |
|
4 |
Failure
to submit a final written report within 30 days of completion of
implementation of the Compliance Plan. |
$250
per week late, or part thereof. |
|
5 |
Failure
to develop and implement a storm water pollution prevention plan within 60 days
of the effective date. |
$500
per week late, or part thereof. |
|
6 |
Failure
to conduct and document weekly visual inspections. |
$400
per violation |
|
6 |
For
violations of the requirements of Rule 6 during the Compliance Demonstration |
$400
per violation |
|
6 |
Failure to submit to IDEM an Annual
Report within 365 days of the effective date of the NOI. |
$150
per week late, or part thereof. |
10.
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.
11.
Civil
and stipulated penalties are payable by check to the “Environmental Management
Special Fund.” Checks shall include the Case Number 2020-27246-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 |
12.
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.
13.
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.
14.
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.
15.
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.
16.
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.
17.
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.
18.
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.
19.
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.
20.
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 |
PolyJohn Enterprises
Corporation |
|
|
|
|
By:
__________________________ |
By:
________________________ |
|
Amari
Farren, 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 November 1, 2021 |
|
|
Martha
Clark Mettler |
|
|
Assistant
Commissioner |
|
|
Office
of Water Quality |