STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT

) SS: OF ENVIRONMENTAL MANAGEMENT

COUNTY OF MARION )

COMMISSIONER OF THE DEPARTMENT )

OF ENVIRONMENTAL MANAGEMENT, )

)

Complainant, )

)

v. ) CASE NO. 2001-10294-W

)

WICK’S PIES, INC. )

)

Respondent. )

 

AGREED ORDER

 

The Complainant and the 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.

I. FINDINGS OF FACT

1. Complainant is the Commissioner (hereinafter referred to as "Complainant") of the Indiana Department of Environmental Management, a department of the State of Indiana created by IC 13-13-1-1.

2. The Respondent is Wick’s Pies, Inc. ("Respondent"), located at 217 Greenville Avenue, in Winchester, Randolph County, Indiana ("Site").

3. The Indiana Department of Environmental Management ("IDEM") has jurisdiction over the parties and subject matter of this action.

    1. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation via Certified Mail to:

      2.  

      Michael D. Wickersham, President and Registered Agent

      Wick’s Pies Inc

      217 Greenville Avenue

      Winchester, Indiana 47394

    2. Based on information submitted to the Indiana Department of Environmental Management (IDEM) by the City of Winchester on February 5, 2001, the Respondent, which is located in Randolph County, was in violation of the following environmental statute and rules:

A. Pursuant to IC 13-30-2-1, no person may 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 or into any publicly owned treatment works (POTW) in any form which causes or would cause pollution which violates rules, standards, or discharge or emission requirements adopted by the appropriate board pursuant under this title.

    1. Pursuant to 327 IAC 5-12-2, [applies prior to November 10, 2000] a user of a POTW shall not allow the introduction of any pollutant that could obstruct flow, pass through, or interfere with the operation or performance of the POTW.

C. Pursuant to 327 IAC 5-18-2(a), [applies on and after November 10, 2000], a user of a POTW shall not allow the introduction of any pollutant that could obstruct flow, pass through, or interfere with the operation or performance of the POTW.

    1. On August 18, 1998, the City of Winchester experienced an overflow of raw sewage from its sanitary sewer manhole cover under the bridge at Franklin Street and into Salt Creek. City personnel attributed this overflow to an obstruction caused by pie dough solids discharged from Respondent’s facility. This raw sewage overflow resulted in a fish kill.

    2. Respondent introduced pollutants into the POTW that obstructed the flow to the POTW in August 1998, in violation of IC 13-30-2-1 and 327 IAC 5-12-2.

    3. On January 26, 2001, the City of Winchester received phone calls regarding sewer line backups on Franklin Street. City wastewater personnel responded and found sewer lines were obstructed by heavy solids such as flour and grease discharged from the Respondent’s facility. Respondent was notified of the incident, and a representative responded and was shown the problem.

    4. On January 28, 2001, the City of Winchester received additional calls regarding sewer backups. Sewage was found emanating from the manhole under the Franklin Street bridge and flowing into Salt Creek.

    5. In January 29, 2001, the City of Winchester received more reports of sewage flowing, untreated, into Salt Creek and sewer backups. City personnel again found evidence that the backup was the result of an obstruction of flow in the sanitary sewer line, caused by waste materials discharged from Respondent’s facility.

    6. Respondent introduced pollutants into the POTW that obstructed the flow to the POTW in January 2001, in violation of IC 13-30-2-1 and 327 IAC 5-18-2(a).

    7. In recognition of the settlement reached, the Respondent 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 the Complainant or her delegate, and has been received by the Respondent. This Agreed Order shall have no force or effect until the Effective Date.

2. Within thirty (30) days of the Effective Date, the Respondent shall submit to IDEM, for its approval, a Compliance Plan ("CP") addressing all violations as identified in the Findings of Fact of this Agreed Order. This CP should include:

    1. Specific actions that the Respondent will take to assure compliance in the future, including, if necessary, the installation of treatment to remove solids from the wastewater prior to its discharge into the City of Winchester’s sewer system.

    2. A Best Management Plan (BMP) which identifies actions that will be taken to minimize the discharge of solids into the City of Winchester’s sewer system and which provides for routine inspection of the sewer system.

    3. Scheduled milestone dates for completion of necessary corrective actions or practices.

    4. The schedule for all projects included in the CP shall have an overall project completion date that is no later than six (6) months from the Effective Date of this Agreed Order.

3. The CP is subject to the approval of IDEM. If the plan is deemed inadequate by IDEM, a revised CP shall be submitted within fifteen (15) days of receipt of notice from IDEM of the inadequacies thereof. If, after submission of the first revised CP, IDEM still finds the document to be inadequate, then IDEM will request further modification of the CP as necessary to meet IDEM’s requirements. If the subsequently submitted second revised CP does not meet IDEM’s approval, IDEM will suggest specific modifications to be made to the CP and require re-submittal by a specific date. If, by the specified date, the Respondent does not incorporate the IDEM-suggested modifications into the third revised CP or submit an alternative IDEM-approvable plan, the Respondent will be subject to stipulated penalties as described below.

4. The Respondent, upon receipt of written notification from IDEM, shall immediately implement the approved plan. The approved CP shall be incorporated into the Agreed Order and shall be deemed an enforceable part thereof.

5. All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:

Stacie Tucker, Office of Enforcement

Indiana Department of Environmental Management

100 North Senate Avenue

P.O. Box 6015

Indianapolis, IN 46206-6015

6. The Respondent is assessed a civil penalty of Five Thousand, Two Hundred Fifty Dollars ($5,250). Said penalty amount shall be due and payable to the Environmental Management Special Fund within 30 days of the Effective Date of this Agreed Order.

7. In the event the terms and conditions of the following Order paragraphs are violated, the Complainant may assess and the Respondent shall pay a stipulated penalty in the following amount:

Violation Penalty

Failure to comply with Paragraph 2 $500 per each week, or part thereof, past the 30-day deadline that the Respondent fails to submit the required CP.

 

 

Failure to comply with Paragraph 3 $500 per each week, or part thereof, past the 15-day deadline that the Respondent fails to submit any required revised CP.

$500 per each week, or part thereof, that the Respondent fails to either adequately modify the CP or submit an approvable alternative plan after the submission of the third revised CP.

Failure to comply with Paragraph 4 $1000 per each week, or part thereof, that the Respondent fails to meet any milestone date incorporated into the Agreed Order through the approval of the CP.

8. Stipulated penalties shall be due and payable within thirty (30) days after the Respondent receives written notice that the Complainant has determined a stipulated penalty is due. Assessment and payment of stipulated penalties shall not preclude the Complainant from seeking any additional relief against the Respondent for violation of the Agreed Order. In lieu of any of the stipulated penalties given above, the Complainant may seek any other remedies or sanctions available by virtue of the Respondent's violation of this Agreed Order, or Indiana law, including but not limited to civil penalties pursuant to IC 13-30-4.

9. 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:

Cashier

Indiana Department of Environmental Management

100 N. Senate Avenue

P. O. Box 7060

Indianapolis, IN 46207-7060

 

 

10. In the event that the civil penalty required by Order Paragraph 6, is not paid within thirty (30) days of the Effective Date of this Agreed Order, the Respondent shall pay interest on the unpaid balance at the rate established by IC 24-4.6-1-101. The interest shall continue to accrue until the civil penalty is paid in full.

11. This Agreed Order shall apply to and be binding upon the Respondent, its successors, and assigns. The Respondent's signatories to this Agreed Order certify that they are fully authorized to execute this document and legally bind the parties they represent. No change in ownership, corporate, or partnership status of the Respondent shall in any way alter its status or responsibilities under this Agreed Order.

12. In the event that any terms of the 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 the Agreed Order did not contain the invalid terms.

13. The Respondent shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights are transferred. The Respondent shall ensure that all contractors, firms and other persons performing work under this Agreed Order comply with the terms of this Agreed Order.

14. Efforts by the Respondent to comply with the provisions of this Agreed Order shall not serve as justification for not complying with applicable provisions of the Indiana Code and the Indiana Administrative Code.

15. This Agreed Order shall remain in effect until Respondent has complied with the terms and conditions of Section II of this Agreed Order and IDEM has issued a Resolution of Cause letter to the Respondent.

TECHNICAL RECOMMENDATION: RESPONDENT:

Department of Environmental Management Michael D. Wickersham

By: ______________________________ By: ______________________________

Mark W. Stanifer

Section Chief, Water Section Printed: _____________________________

Office of Enforcement

Title: ______________________________

Date: _______________________________ Date: ______________________________

 

 

 

COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:

Department of Environmental Management

By: ______________________________ By: ______________________________

Office of Legal Counsel

Date: ______________________________ Date: ______________________________

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS ___1st_____ DAY OF _____November_____________, 2001.

 

For The Commissioner:

 

___________________________

Felicia A. Robinson

Assistant Commissioner

Office of Enforcement