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. 2003-13045-W
)
MILL ROAD ESTATES, LLC, )
)
Respondent. )
AGREED ORDER
The 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 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, a department of the State of Indiana created by IC 13-13-1-1.
2. Respondent is Mill Road Estates, LLC, which operates and holds National Pollutant Discharge Elimination System ("NPDES") Permit No. IN 0109835 (the "Permit") for the Mill Road Estates M.H.P. wastewater treatment plant ("WWTP"), located at 15001 Mill Road in Fort Wayne, Allen County, Indiana ("Site").
3. The Indiana Department of Environmental Management ("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 on September 5, 2003, via Certified Mail, to:
Robert W. Troxel, Manager and Registered Agent
Mill Road Estates, LLC
1240 High Pointe Ct.
Bluffton, IN 46714
5. Respondent is authorized by the NPDES permit to discharge from a semi-public WWTP to receiving waters named the St. Mary's River, via storm sewer in accordance with the effluent limitations, monitoring requirements, and other conditions set forth in the permit.
6. Inspections and record reviews on March 24 and April 9, 2003 were conducted at the Site by representatives of IDEM’s Office of Water Quality ("OWQ"). The following violations were in existence or observed at the time of these inspections and record reviews:
A.1. 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.
Respondent released a pollutant into the environment by allowing waste to overflow into the waters of the State in violation of 327 IAC 5-2-8, a rule of the water pollution control board, in violation of IC 13-30-2-1. An overflow had occurred from the surge tank when a float malfunctioned. The overflow went down an incline under the fence which surrounds the sewage treatment plant and into storm drains by a residence. The overflow occurred at 5:00 am on April 8, 2003. Debris was observed on the ground during the April 9, 2003 inspection by IDEM.
2. Pursuant to IC 13-18-4-5, it is unlawful for any person to throw, run, drain, or otherwise dispose into any of the streams or waters of Indiana; or cause, permit, or suffer to be thrown, run, drained, allowed to seep, or otherwise disposed into any waters; any organic or inorganic matter that causes or contributes to a polluted condition of any waters, as determined by a rule of the board adopted under IC 13-18-4-1 and IC 13-18-4-3.
Respondent caused or contributed to a polluted condition of waters of the State by allowing waste to overflow into the waters of the State in violation of 327 IAC 5-2-8, a rule of the water pollution control board, in violation of IC 13-18-4-5. An overflow had occurred from the surge tank when a float malfunctioned. The overflow went down an incline under the fence which surrounds the sewage treatment plant and into storm drains by a residence. The overflow occurred at 5:00 am on April 8, 2003. Debris was observed on the ground during the April 9, 2003 inspection by IDEM.
3. Pursuant to 327 IAC 5-2-8(8), Respondent is required to do the following:
i. At all times maintain in good working order and efficiently operate all facilities and systems (and related appurtenances) for collection and treatment that are installed and used by the permittee and which are necessary for achieving compliance with the terms and conditions of the permit.
Respondent failed to maintain the wastewater treatment system in good working order. An overflow occurred from the surge tank when a float malfunctioned.
B.1 Pursuant to 327 IAC 5-2-8 and Part II.A. of the Permit, Respondent is required to do the following:
i. Comply with all terms and conditions of the permit.
ii. Take all reasonable steps to minimize or correct any adverse impact on the environment resulting from noncompliance with the permit.
Respondent failed to minimize adverse impact on the environment resulting from noncompliance with the permit. The facility was operating in a washed out condition.
2. Pursuant to 327 IAC 5-2-8(8) and Part II.B.1 of the Permit, Respondent is required to do the following:
i. At all times maintain in good working order and efficiently operate all facilities and systems (and related appurtenances) for collection and treatment that are installed and used by the permittee and which are necessary for achieving compliance with the terms and conditions of the permit. All facilities shall be operated as efficiently as possible and in a manner which will minimize upsets and discharges of excessive pollutants.
Respondent failed to properly maintain the wastewater treatment system at the facility. The system was found to be operating in a washed out condition. The aeration tank was pale; biosolids were being lost over the weir in the clarifier; and a heavy blanket of sludge covered both settling tanks. The effluent was cloudy and grayish with floating solids. The washed out condition was most likely indicative of inflow/infiltration in the collection system, a condition which has been noted on previous inspection reports.
C.1 Pursuant to 327 IAC 5-2-8(9), Respondent is required to do the following:
i. Comply with the monitoring, recording, and reporting requirements established in 327 IAC 5-2-13, 327 IAC 5-2-14, and 327 IAC 5-2-15.
Respondent failed to comply with the monitoring, recording, and reporting requirements established in 327 IAC 5-2-13, 327 5-2-14, and 327 5-2-15.
2. Pursuant to 327 IAC 5-2-15(a), all NPDES permittees shall report to the Commissioner, using Discharge Monitoring Reports ("DMRs") and, in the case of POTWs, semipublic, state, and federal facilities, reports of operation ("MROs"), the results of any monitoring as specified in the permit, pursuant to 327 IAC 5-2-13, as often as required by the permit.
Respondent failed to properly complete and/or provide the correct information on DMRs and MROs submitted to IDEM. Signatures have not been provided on MROs (the old form is being used despite letters sent to all owners in January of 2001 and January of 2002 informing them of the new forms with the signature requirement). Additionally, the correct information for flow bypassing is not being correctly reported on DMR forms. IDEM sent a letter to Respondent on June 5, 2002, explaining that the information was not being properly reported on DMR forms.
3. Pursuant to Part I.B.3 of the Permit, the permittee shall submit reports to IDEM that contain monitoring results obtained during the completed monitoring period. These reports shall include, but not be limited to, the DMR and MRO, and shall be postmarked no later than the 28th day of each month following the completed monitoring period.
Respondent failed to properly complete and/or provide the correct information on DMRs and MROs submitted to IDEM. Signatures have not been provided on MROs and the correct information for flow bypassing is not being correctly reported on DMR forms.
4. Pursuant to 327 IAC 5-2-8(10)(C) and Part II.C.3 of the Permit, Respondent is required to orally report to the Commissioner information on the following types of noncompliance within 24 hours from the time the permittee becomes aware of the noncompliance. A written report shall also be provided within five days of the time the permittee becomes aware of the circumstances:
i. Any unanticipated bypass that exceeds any effluent limitation in the permit;
ii. Violation of a maximum daily discharge limitation for any of the pollutants listed by the commissioner in the permit to be reported within 24 hours;
iii. Any noncompliance that may pose a significant danger to human health or the environment. Reports under this item shall be made as soon as the permittee becomes aware of the noncomplying circumstances to the emergency response numbers; and
iv. Any upset that exceeds any effluent limitation in the permit.
Respondent failed to report noncompliance that may have posed a significant danger to human health and the environment. The overflow on April 8, 2003 had not been reported in a timely manner, nor had a similar bypass noted during a May 1, 2001 inspection by IDEM.
5. Pursuant to 327 IAC 5-2-14(b) and Part I.B.8 of the Permit, all records and information resulting from the monitoring activities required by the permit shall be retained for a minimum of three years. In cases where the original records are kept at another location, a copy of all such records shall be kept at the permitted facility.
Respondent failed to have records and information resulting from monitoring activities on site at the time of the March 24, 2003 inspection.
7. The parties met on October 17, 2003, to discuss the violations and necessary injunctive relief. Respondent Robert Troxel was represented at the settlement conference by Ryan and Sarah Corkwell. Although Robert Troxel remains majority owner of the Site as of this date, majority ownership of the Site will be transferred to the Corkwells in the near future. Since the date of the inspections, Ryan Corkwell has been issued a Provisional Wastewater Treatment Operator's Certificate by IDEM and plans to take the Certified Operator's Exam in April of 2004. At the time of the conference, the Corkwells presented information on the improvements made at the facility since the date of the inspection.
8. In recognition of the settlement reached, 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 Respondent. This Agreed Order shall have no force or effect until the Effective Date.
2. Upon the Effective Date of this Agreed Order, Respondent shall immediately notify IDEM if there is any change in who is in responsible charge of the wastewater treatment facility and records preparation other than Ryan Corkwell.
3. Within 30 days of the Effective Date of this Agreed Order, Respondent shall develop and submit to IDEM for approval a "Compliance Plan" which identifies actions that Respondent will take to achieve and maintain compliance with its NPDES Permit, specifically including the actions Respondent will take to:
a. Return the system to a good operating condition from the washed out condition;
b. Investigate causes and implement measures to eliminate any inflow and infiltration (I & I) problems with the system;
c. Implement measures to eliminate overflows. At a minimum, these should include routine inspections and maintenance; and
d. Implement measures to comply with the reporting requirements of the permit. At a minimum, these should include the use of proper report forms, including DMRs and MROs, and the use of proper units of reporting. In addition, steps should be implemented to ensure that any overflow that may be a threat to human health or the environment, or any other condition listed in 327 IAC 5-2-8(10)(C) and Part II.C.3 of the NPDES permit, is reported according to the timelines found within the permit.
The Compliance Plan shall include an implementation and completion schedule, including specific milestone dates.
4. Respondent shall, within six months of completion of the Compliance Plan required by Paragraph 3 above (Performance Period), demonstrate five consecutive months of compliance (Compliance Demonstration) with the operating, maintaining, and reporting requirements of its NPDES Permit. During the Performance Period, Respondent shall be subject to stipulated penalties, as specified below, for violations of the permit. In the event that Respondent fails to make the Compliance Demonstration, Respondent shall, within 60 days of becoming aware that the Compliance Demonstration cannot be achieved, develop and submit to IDEM, for approval, an Additional Action Plan which identifies the additional actions that Respondent will take to achieve and maintain compliance with the NPDES Permit. The Additional Action Plan, if required, shall include an implementation and completion schedule, including specific milestone dates.
5. The plans required by Paragraphs 3 and 4 above are subject to IDEM approval. If IDEM deems a plan inadequate, a revised plan shall be submitted within fifteen days of receipt of notice from IDEM of the inadequacies thereof. If, after submission of the first revised document, IDEM still finds the document to be inadequate, then IDEM will request further modification of the plan as necessary to meet IDEM’s requirements, and require re-submittal of the plan by a specific date. If the subsequently submitted second revised plan does not meet IDEM’s approval, IDEM will suggest specific modifications to be made to the plan and require re-submittal by a specific date. If, by the specified date, Respondent does not incorporate the IDEM-suggested modifications into the third revised plan or submit an alternative adequate plan (as determined by IDEM), Respondent will be subject to stipulated penalties as described below. Respondent, upon receipt of written notification from IDEM, shall immediately implement the approved plan and adhere to the milestone dates therein. The approved Compliance Plan and Additional Action Plan shall be incorporated into the Agreed Order and shall be deemed an enforceable part thereof. Failure to achieve compliance at the conclusion of work under an Additional Action Plan will subject Respondent to additional enforcement action.
6. Beginning on the Effective Date of this Agreed Order and continuing until the completion of the Compliance Plan provided for by Paragraph 3 above, Respondent shall, at all times, operate its existing facility as efficiently and effectively as possible, and shall be subject to stipulated penalties for its failure to comply with the operating, maintaining, and recording requirements of its permit.
7. Upon the Effective Date of this Agreed Order, Respondent shall ensure compliance with 327 IAC 5-2-14(b) and Part I.B.8 of the Permit. Specifically, all records and information resulting from the monitoring activities required by the permit shall be retained for a minimum of 3 years. In cases where the original records are kept at another location, a copy of all such records shall be kept at the permitted facility.
8. All submittals required by this Agreed Order, unless notified otherwise in
writing, shall be sent to:
Ms. Brenda Lepter, Enforcement Case Manager
Office of Enforcement
Indiana Department of Environmental Management
100 N. Senate Avenue
P. O. Box 6015
Indianapolis, IN 46206-6015
9. Respondent is assessed a civil penalty of Seven Thousand Eight Hundred and Eighty Dollars ($7,880). Said penalty amount shall be due and payable to the Environmental Management Special Fund in four installments of $1,970 each. The first installment shall be due within 30 days of the Effective Date of this Agreed Order. The second installment shall be due on or before March 31, 2004. The third installment shall be due on or before June 30, 2004, and the final payment shall be due on or before September 30, 2004.
10. In the event the terms and conditions of the following paragraphs are violated, the Complainant may assess and Respondent shall pay a stipulated penalty in the following amount:
Violation
PenaltyFailure to submit Compliance Plan or $1000 per week
revised Compliance Plan -
Order Nos. 3 & 5
Failure to implement any part of $1000 per documented event
approved Compliance Plan -
Order No. 5
Failure to submit Additional Action Plan $1000 per week
or revised Additional Action Plan -
Order Nos. 4 & 5
Failure to implement any part of $1000 per documented event
approved Additional Action Plan -
Order No. 5
11. Stipulated penalties shall be due and payable within 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 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 or Indiana law, including, but not limited to, civil penalties pursuant to IC 13-30-4.
12. 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
13. In the event that the civil penalty required by Order paragraph 9 is not paid according to the terms 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.
14. 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 document and legally bind the parties 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.
15. 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.
16. 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.
17. This Agreed Order shall remain in effect until Respondent has complied with paragraph 2 through 13 of this Agreed Order and IDEM issues a close out letter to Respondent.
TECHNICAL RECOMMENDATION: RESPONDENT:
Department of Environmental Management
By: __________________________ By: ________________________
Mark W. Stanifer, Chief Robert W. Troxel, Manager
Water Section
Office of Enforcement Printed: __________________
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 _____ DAY OF _______________, 2003.
For the Commissioner:
Signed on January 5, 2004
___________________________
Felicia A. Robinson
Deputy Commissioner for
Legal Affairs