|
STATE
OF |
) |
|
BEFORE THE INDIANA DEPARTMENT |
||
|
|
|||||
|
COMMISSIONER OF THE DEPARTMENT Complainant, v. HIDEAWAY HILLS MHP, LLC, 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. The 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 (hereinafter referred to as
Complainant) of the Indiana Department of Environmental Management, a
department of the State of
2. The Respondent is Hideaway Hills MHP, LLC (Respondent), which
owns and operates a wastewater treatment plant at the Hideaway Hills Mobile
Home Park located at 2441 West 250 South, in Warsaw, Kosciusko County, Indiana,
authorized by NPDES Permit Number IN 0030881 to discharge wastewater to receiving waters named Boggs
Ditch to Sickle Lake via Outfall 001.
3. The
4. Pursuant to IC 13-30-3-3, on February 9, 2006 IDEM issued a
Notice of Violation via Certified Mail to:
|
Mr. Michael G. Adoniades |
|
Managing Member and Registered Agent |
|
Hideaway Hills MHP, LLC |
|
|
|
|
5. Pursuant to 327 IAC 5-2-8(1) and Part II.A.1 of the NPDES
Permit, the permittee shall comply with all terms and conditions of the
permit. Any permit noncompliance
constitutes a violation of the Clean Water Act and IC 13 and is grounds for
enforcement action.
6.
Pursuant to 327
IAC 5-2-8(8) and Part II.B.1.a of the NPDES Permit, the permittee shall at all
times, maintain in good working order and efficiently operate all facilities
and systems (and related appurtenances)
for collection and treatment which are necessary for achieving compliance with
the terms and conditions of the permit.
Inspections conducted on May 23 and June 28, 2005 document that the
Respondent’s WWTP has not been maintained in good working order or efficiently
operated in violation of 327 IAC 5-2-8(8) and Part II.B.1.a of the Permit.
7.
Pursuant to 327
IAC 5-2-13 and Part I.A.1. and Part I.B.2. of the NPDES Permit, Respondent is
required to monitor the volume of wastewater flow at monitoring points
specified in the permit, including the final effluent flow from each point
source from its WWTP. Failure to comply
with these monitoring requirements pursuant to 327 IAC 5-2-13, constitutes a
violation of the Permit. Respondent
failed to monitor the flow at its WWTP during the months of November and
December 2004 and February, March and April 2005, in violation of 327 IAC
5-2-13 and its NPDES Permit.
8.
Pursuant to 327
IAC 2-1-6(a):
a.
All waters at
all times and at all places, including 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:
1.
that will settle
to form putrescent or otherwise objectionable deposits;
2.
that are in amounts
sufficient to be unsightly or deleterious;
3.
that produce
color, visible oil sheen, odor, or other conditions on such degree as to create
a nuisance;
4.
which are in
amounts sufficient to be acutely toxic to, or to otherwise severely injure or
kill aquatic life, other animals, plants, or humans; and
5.
which 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.
b.
At all times,
all waters outside of mixing zones shall be free of substances in
concentrations which on the basis of available scientific data are believed to
be sufficient to injure, be chronically toxic to, or be carcinogenic,
mutagenic, or teratogenic to humans, animals, aquatic life, or plants.
Respondent caused or contributed to the contamination of waters of the state at
Boggs Ditch by allowing substances that were in amounts sufficient to be
unsightly or deleterious as documented in inspections conducted on May 23 and
June 28, 2005, in violation of 327 IAC 2-1-6(a).
9.
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.
Pursuant to Part I.A.1 of the NPDES Permit, Respondent is required to comply
with the effluent limitations applicable to the discharge from Outfall 001,
including the numeric effluent limitations contained in Part I.A.1 of the
Permit.
IDEM records for the period from June 1, 2003 through October 31, 2005,
revealed that Respondent failed to meet numeric effluent limitations applicable
to the discharge from Outfall 001, contained in Part I.A.1 of the NPDES Permit,
as follows
Dissolved Oxygen: March, May, June, July, August, September, October, November,
December 2004; January, February, March, April, May, June, July, August,
October 2005
Total Suspended Solids: March, April, May, June, August, September, October,
November, December 2004; January, February, March, April, June, August,
September, October 2005
Ammonia Nitrogen: March, April, May, June, July, August, September, December
2004; January, February, March, April, May, June, July, August, September 2005
Total Phosphorus: June, September 2003; March, April, June, July, August,
September, October, November, December 2004; January, February, March, April,
June, July, August, September, October 2005
Total Residual Chlorine: June, July, August, September 2004; April, May, June,
July, August, September 2005
Carbonaceaous Biochemical Oxygen Demand (CBOD5): April, July, August,
October, November, December 2004; January, February, March, April, August,
September 2005
Respondent’s failure to meet numeric limitations applicable to the discharge
from Outfall 001, contained in Part I.A.1 of the NPDES Permit, is in violation
of IC 13-30-2-1, 327 IAC 5-2-8(1), Part II.A.1 of the NPDES Permit and Part
I.A.1 of the NPDES Permit.
10. 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 his delegate, and has been received by the
Respondent. This Agreed Order shall have
no force or effect until the Effective Date.
2.
The Respondent
shall comply with 327 IAC 5-2-8, 327 IAC 5-2-13, 327 IAC 2-1-6, IC 13-30-2-1,
and the terms and conditions of NPDES Permit No. IN0030881.
3.
Within thirty (30)
days of the Effective Date of this Agreed Order, the 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 the Respondent will take to:
a.
maintain the
facility and all related systems and appurtenances in good working order;
b.
evaluate and
implement means to consistently meet all permit effluent limits; and
c.
comply with all
reporting requirements of the permit.
4.
The 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 effluent limitations
contained in its NPDES Permit. During
the Performance Period, the Respondent shall be subject to stipulated
penalties, as specified below, for violations of the effluent limitations. 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 approval, an “Additional Action Plan” which identifies
the additional actions that Respondent will take to achieve and maintain
compliance with the effluent limitations contained in its 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 (15) 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, the Respondent does not incorporate the IDEM-suggested modifications into
the third revised plan or submit an alternative adequate plan (as determined by
IDEM), the Respondent will be subject to stipulated penalties as described
below. The 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 the
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, the Respondent shall, at all
times, operate its existing POTW as efficiently and effectively as possible,
and shall be subject to stipulated penalties for its failure to comply with
permit limitations.
7.
All submittals
required by this Agreed Order, unless notified otherwise in writing, shall be
sent to:
|
Christina
Sorensen, Enforcement Case Manager |
|
Indiana
Department of Environmental Management |
|
Office of
Enforcement – Mail Code 60-02 |
|
|
|
|
8. The Respondent is assessed a civil penalty of Eleven
Thousand Two Hundred Dollars ($11,200).
Said penalty amount shall be due and payable to the Environmental
Management Special Fund within thirty (30) days of the Effective Date of this
Agreed Order.
9. 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:
|
Paragraph |
Violation |
Stipulated
penalty |
|
3 |
Failure to submit or
modify the compliance plan, as required, within the given time period. |
$250 per week late, or
part thereof. |
|
4,5 |
Failure to submit or
modify the Additional Action Plan, if required, within the given time period |
$250 per each week late,
or part thereof |
|
5 |
Failure to meet any
milestone date set forth in the approved compliance plan |
$500 per each week late,
or part thereof |
10. 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
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 |
|
Cashiers Office – Mail
Code 50-10C |
|
|
|
|
12. In the event that the civil penalty
required by Order Paragraph No. 8, 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.
13.
“Force 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 the
Respondent’s best efforts to fulfill the obligation. The requirement that the Respondent exercise
“best 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. “Force
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 calendar
days and by writing no later than seven 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 the 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 a performance under this Agreed Order, by the amount of
time that is directly attributable to the event constituting the force majeure.
14.
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.
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.
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.
17.
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 the Respondent pursuant
to this Agreed Order, shall not in any way relieve the Respondent of its
obligation to comply with the requirements of any applicable permit or order or
with any other applicable federal or state law or regulation.
18.
The Complainant
does not, by its approval of this Agreed Order, warrant or aver in any manner
that the Respondent’s compliance with any aspect of this Agreed Order will
result in compliance with the provisions of any permit or 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 the Respondent may incur as a result of Respondent’s
efforts to comply with this Agreed Order.
19.
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 seek additional civil penalties for the violations
specified in the Notice of Violation.
20.
Nothing in this
Agreed Order shall prevent IDEM or anyone acting on its behalf from
communicating with the United States Environmental Protection Agency (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 the Respondent may
incur as a result of such communications with the EPA or any other agency or
entity.
21.
This Agreed
Order shall remain in effect until the Respondent complies with the terms of
Order Paragraph Nos. 3 through 12 and IDEM issues a Close-Out letter.
|
TECHNICAL
RECOMMENDATION: |
|
RESPONDENT: |
|||||
|
Department
of Environmental Management |
|
Hideaway
Hills MHP, LLC |
|||||
|
|
|
|
|||||
|
By: |
|
|
By: |
|
|||
|
|
Mark W. Stanifer |
|
Printed: |
Michael
G. Adoniades |
|||
|
|
Section
Chief, Water Section |
|
Title: |
Owner |
|||
|
|
Office
of Enforcement |
|
|
|
|||
|
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 |
|
,
2006. |
|||
|
|
|||||||
|
|
For
The Commissioner: |
||||||
|
|
|
||||||
|
|
Signed
on September 8, 2006 |
||||||
|
|
Matthew
T. Klein |
||||||
|
|
Assistant
Commissioner |
||||||
|
|
of
Compliance and Enforcement |
||||||