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. 2001-10373-W
)
TWIN LAKES UTILITIES, 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. Pursuant to IC 13-30-3-3, entry into the terms of this Agreed Order does not constitute an admission of any violation contained herein.
I. FINDINGS OF FACT
1. Complainant is the Commissioner (AComplainant@) of the Indiana Department of Environmental Management, a department of the State of Indiana created by IC 13-13-1-1.
2. Respondent is Twin Lakes Utilities, Inc. ("Respondent"), which owns and operates the Twin Lakes Utilities, Inc. Wastewater Treatment Plant (WWTP), located at the Lake of the Four Seasons, approximately 3/4 mile east of Palmer, at 9021 East 123rd Avenue, Crown Point, in Lake County, Indiana. The Twin lakes Utilities, Inc. WWTP is authorized by NPDES Permit No. IN 0037176 (the Permit) to discharge treated wastewater to receiving waters named the East Branch of Stony Run, in accordance with effluent limitations, monitoring requirements, and other conditions set forth in the Permit.
3. The Indiana Department of Environmental Management (AIDEM@) has jurisdiction over the parties and the subject matter of this action.
4. Pursuant to IC 13-30-3-3, on May 11, 2001, IDEM issued a Notice of Violation via
Certified Mail to:
Mr. James L. Camaren, President and to: CT Corporation, Resident Agent
Twin Lakes Utilities, Inc. Twin Lakes Utilities, Inc.
2335 Sanders Road 36 S. Pennsylvania, Suite 700
Northbrook, Illinois 60062 Indianapolis, Indiana 46204
5. Pursuant to IC 13-30-2-1, a person may not 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 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.
6. Pursuant to 327 IAC 5-2-2, any discharge of pollutants into waters of the state as a point source discharge, except for exclusions made in 327 IAC 5-2-4, is prohibited unless in conformity with a valid NPDES permit obtained prior to the discharge.
7. Pursuant to 327 IAC 5-2-8(1) and Part II.A.1 of the NPDES Permit, the Respondent is required to comply with all terms and conditions of the Permit. Any permit noncompliance constitutes a violation of the Clean Water Act (CWA) and IC 13 and is grounds for enforcement action.
8. Part I.A.2 of the Permit sets forth the final effluent limitations applicable to the discharge from Outfall 001. The final effluent limitations became effective on April 1, 1999.
9. Discharge Monitoring Reports and Monthly Reports of Operation submitted by the Respondent to IDEM for April 1999 through February 2001, reveal that the WWTP failed to meet final effluent limitations contained in Part I.A.2 of the Permit for Ammonia-nitrogen, E.coli, Total Residual Chlorine, pH, and Total Suspended Solids as follows:
A. The weekly average (loading) effluent limitation for Ammonia-nitrogen was violated during July, September, October, and November of 1999; and May and November of 2000.
The monthly average (loading) effluent limitation for Ammonia-nitrogen was violated during September, October, and November of 1999; and May, June, and November of 2000.
The weekly average (concentration) effluent limitation for Ammonia-nitrogen was violated during July, September, October, November, and December of 1999; May, July, and November of 2000; and January of 2001.
The monthly average (concentration) effluent limitation for Ammonia-nitrogen was violated during September, October, November, and December of 1999; and May and November of 2000.
B. The daily maximum effluent limitation for E.Coli was violated during April,
May, June, July, August, September and October of 1999; and April, May, June, July, August, September, and October of 2000.
The monthly average effluent limitation for E.Coli was violated during April, June, July, August, September and October of 1999; and April, May, June, July, August, September, and October of 2000.
Residual Chlorine were violated during April of 1999 and July of 2000.
D. The daily maximum effluent limitation for pH was violated during October
and November of 2000.
E. The weekly average (loading and concentration) and monthly average (loading and concentration) effluent limitations for Total Suspended Solids were violated during December of 2000.
10. The Respondent’s failure to meet effluent limitations contained in the Permit is in violation of IC 13-30-2-1, 327 IAC 5-2-2, 327 IAC 5-2-8(1), Part II.A.1 of the Permit, and Part I.A.2 of the Permit.
11. 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) that identifies the corrective actions that the Respondent will take to achieve and maintain compliance with the final effluent limitations contained in its Permit. The CP shall include an implementation and completion schedule, including specific milestone dates.
The CP is subject to the approval of IDEM. If the CP 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 revised documents(s) IDEM still finds that the document(s) are inadequate, then IDEM may require further modification of the CP as necessary to meet IDEM=s requirements. If further modification does not meet IDEM=s approval, IDEM will suggest appropriate modification to be undertaken by the Respondent. If such modification is not undertaken or an alternative, adequate CP is not submitted by the Respondent within thirty (30) days, the Respondent will be subject to stipulated penalties.
The approved CP shall be incorporated into the Agreed Order and shall be deemed an enforceable part thereof. The Respondent, upon written notification by IDEM, shall immediately implement the approved CP, and complete the actions contained in the approved CP in accordance with the schedule included in the approved CP. Upon completion of each action contained in the approved CP, the Respondent shall submit notification of completion of the action to IDEM. The notification shall include a description of the action completed, and the date it was completed.
(12) months of the completion date (the "Performance Period"), demonstrate six (6) consecutive months of compliance ("Compliance Demonstration") with the final effluent limitations contained in its Permit. With respect to the effluent limitations for E. coli and Total Residual Chlorine, the Compliance Demonstration must occur during the months in which those effluent limitations are in effect.
During the Performance Period, the Respondent shall be subject to stipulated penalties, as specified in Paragraph 6 below, for violations of the final effluent limitations contained in its Permit. In the event that Respondent fails to make the Compliance Demonstration, Respondent shall, within sixty (60) days of becoming aware that the Compliance Demonstration cannot be achieved, develop and submit to IDEM, for its approval, a plan ("action plan") which identifies the corrective actions that Respondent will take to achieve and maintain compliance with the final effluent limitations contained in its Permit. The action plan, if required, shall include an implementation and completion schedule, including specific milestone dates.
The action plan shall be subject to the approval of IDEM. If the action plan is deemed inadequate by IDEM, a revised action plan shall be submitted within thirty (30) days of receipt of notice from IDEM of the inadequacies thereof. If after submission of the revised documents(s) IDEM still finds that the document(s) are inadequate, then IDEM may require further modification of the action plan as necessary to meet IDEM’s requirements. If further modification does not meet IDEM’s approval, IDEM will suggest appropriate modification to be undertaken by the Respondent. If such modification is not undertaken or an alternative, adequate action plan is not submitted by the Respondent within thirty (30) days, the Respondent will be subject to stipulated penalties.
The approved action plan shall be incorporated into the Agreed Order and shall be deemed an enforceable part thereof. The Respondent, upon written notification by IDEM, shall immediately implement the approved action plan, and complete the actions contained in the approved action plan in accordance with the schedule included in the approved action plan. Upon completion of each action contained in the approved action plan, the Respondent shall submit notification of completion of the action to IDEM. The notification shall include a description of the action completed, and the date it was completed.
4. All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:
Terry Ressler, Case Manager, Water Enforcement Section
Office of Enforcement, IGCN, Rm. 1315
Indiana Department of Environmental Management
100 N. Senate Avenue
P. O. Box 6015
Indianapolis, IN 46206-6015
5. Respondent is assessed a civil penalty of Nine Thousand Nine Hundred Dollars ($9,900). 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.
violated, unless the violations are attributed to "Force Majeure" the Complainant may assess and the Respondent shall pay a stipulated penalty in the following amount:
|
Paragraph |
Violation |
Penalty |
|
Order Paragraph 2 |
Failure to submit or modify CP, as required |
$250 per week late |
|
Order Paragraph 2 |
Failure to meet any milestone date set forth in the approved CP |
$250 per week late |
|
Order Paragraph 3 |
Failure to comply with effluent limitations contained in Permit during Performance Period |
$250 per violation |
|
Order Paragraph 3 |
Failure to submit or modify "action plan", as required |
$250 per week late |
|
Order Paragraph 3 |
Failure to meet any milestone date set forth in approved "action plan" |
$250 per week late |
7. Stipulated penalties shall be due and payable within thirty (30) days after 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 Respondent's violation of this Agreed Order, Indiana law, or Respondent’s NPDES Permit, including, but not limited to, civil penalties pursuant to IC 13-30-4.
8. 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
IDEM
100 N. Senate Avenue
P. O. Box 7060
Indianapolis, IN 46207-7060
9. In the event that the civil penalty required by Order paragraph 5 is not paid within thirty (30) days of the Effective Date of this Agreed Order, 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.
10. AForce Majeure@, for purposes of this Agreed Order, is defined as any event arising from causes totally beyond the control and without fault of the Respondent that delays or prevents the performance of any obligation under this Agreed Order despite Respondent=s best efforts to fulfill the obligation. The requirement that the Respondent exercise Abest efforts to fulfill the obligation@ includes using best efforts to anticipate any potential force majeure event and best efforts to address the effects of any potential force majeure event (1) as it is occurring and (2) following the potential force majeure event, such that the delay is minimized to the greatest extent possible. AForce Majeure@ does not include changed business or economic conditions, financial inability to complete the work required by this Agreed Order, or increases in costs to perform the work.
The Respondent shall notify IDEM by calling the case manager within three (3) calendar days and by writing no later than seven (7) calendar days after it has knowledge of any event which the Respondent contends is a force majeure. Such notification shall
describe the anticipated length of the delay, the cause or causes of the delay, the measures taken or to be taken by the Respondent to minimize the delay, and the timetable by which these measures will be implemented. The Respondent shall include with any notice all available documentation supporting its claim that the delay was attributable to a force majeure. Failure to comply with the above requirements shall preclude Respondent from asserting any claim of force majeure for that event. The Respondent shall have the burden of demonstrating that the event is a force majeure. The decision of whether an event is a force majeure shall be made by IDEM.
If a delay is attributable to a force majeure, IDEM shall extend, in writing, the time period for performance under this Agreed Order, by the amount of time that is directly attributable to the event constituting the force majeure.
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. 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. The provisions of this Agreed Order do not affect the limitations and requirements set forth in the Respondent’s Permit. Efforts by the Respondent to comply with provisions of this Agreed Order shall not serve as justification for not complying with limitations and requirements set forth in its Permit.
15. This Agreed Order shall remain in effect until the Respondent has complied with all terms and conditions of this Agreed Order and IDEM issues a "close out" letter to the Respondent.
TECHNICAL RECOMMENDATION: RESPONDENT:
Department of Environmental Management Twin Lakes Utilities, Inc.
By: _________________________ By: _________________________
Mark W. Stanifer Printed: ______________________
Chief, Water Enforcement Section
Office of Enforcement Title: ________________________
Date: ________________________ Date: ________________________
COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:
Department of Environmental Management
By: _________________________ By: ________________________
Hala K. Silvey
Office of Legal Counsel
Department of Environmental Management
Date: _______________________ Date: ______________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _____ DAY OF ____________________, 2001.
For the Commissioner:
__Signed 8/31/01_________
Felicia A. Robinson
Assistant Commissioner
Office of Enforcement