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STATE OF |
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BEFORE THE INDIANA
DEPARTMENT |
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COMMISSIONER OF THE
DEPARTMENT Complainant, v. WESTERN HANCOCK
UTILITIES, LLC, Respondent. |
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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 IC
13-30-3-3, entry into the terms of this Agreed Order does not constitute an
admission of any fact or 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
2.
Respondent is Western
Hancock Utilities, LLC (“Respondent”), which is an investor-owned sewage
utility including a wastewater treatment plant (“WWTP”) located at 3750 North
County Road 450 West, Greenfield, Hancock County, Indiana (the “Site”). Respondent is authorized by National
Pollutant Discharge Elimination System (“NPDES”) Permit Number IN 0059013 (the
“Permit”) to discharge wastewater treated in accordance with the terms and
conditions of the NPDES Permit from its WWTP via Outfall 001 to waters of the
state, specifically
3.
IDEM has
jurisdiction over the parties and the subject matter of this action.
4.
Pursuant to IC
13-30-3-3, on May 24, 2007, IDEM issued a Notice of Violation via Certified
Mail to: Larry Siegler, President, and Randall Aikman, Registered Agent of
Western Hancock Utilities, LLC.
5.
During an
investigation conducted by representatives of IDEM beginning on August 10, 2006,
the following violations were found:
a)
Pursuant to 327
IAC 2-1-6(a) and part I.A.2 of the Permit, 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:
(a) that
will settle to form putrescent or otherwise objectionable deposits;
(b) that
are in amounts to be unsightly or deleterious;
(c) that
produce color, visible oil sheen, odor, or other conditions in such degree as
to create a nuisance;
(d)
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
(e)
which are in
concentrations or combinations that will cause or contribute to the growth of
aquatic plants or algae to such a degree as to create a nuisance, be unsightly,
or otherwise impair the designated uses.
Discharges
of untreated or partially treated wastewater from Respondent’s WWTP, as
observed by IDEM staff on August 10, 2006, caused or contributed to the
contamination of Buck Creek (a water of the state). This contamination was in amounts sufficient
to be unsightly or deleterious; produced color, odor, and other conditions in
such a degree as to create a nuisance; and was in amounts sufficient to be
toxic to or kill fish (as a fish kill was documented by Conservation Officers
of the Indiana Department of Natural Resources) in violation of 327 IAC
2-1-6(a) and part I.A.2. of the NPDES permit.
b)
Pursuant to 327
IAC 2-1-2(1), existing beneficial uses shall be maintained and protected for
all waters of the state. No degradation
shall be permitted which would interfere with or become injurious to existing
or potential uses.
Respondent
permitted degradation of
c)
Pursuant to
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 sections 1 and 3 of this chapter.
Respondent
caused or contributed to a polluted condition of waters of the state by the
release of insufficiently treated wastewater into
d)
Pursuant to 327
IAC 2-6.1-4(15), a spill is defined as any unexpected, unintended, abnormal, or
unapproved dumping, leakage, drainage, seepage, discharge or other loss of
petroleum, hazardous and/or otherwise objectionable substance which enters or
threatens to enter the waters of the state.
Pursuant
to 327 IAC 2-6.1-7, any person who operates, controls, or maintains any
facility from which a spill occurs shall, upon discovery of a reportable spill
to the soil or surface waters of the state, contain the spill, if possible, to
prevent additional spilled material from entering the waters of the state;
undertake activities needed to accomplish a spill response; and as soon as
possible but within two hours of discovery, communicate a spill report to IDEM,
Office of Environmental Response.
Reportable
spills of partially treated wastewater from Respondent’s WWTP into Buck Creek,
occurred on or about August 9th 2006, and were not reported by Respondent to
IDEM in a timely basis in violation of 327 IAC 2-6.1-7.
e)
Pursuant to 327
IAC 5-2-8(8) and part II.B.1.(a) of Respondent’s Permit, all waste collection,
control, treatment, and disposal facilities shall at all times be operated as
efficiently as possible and in a manner which will minimize upsets and
discharges of excessive pollutants.
Respondent
failed to efficiently operate its waste collection, control, treatment, and
disposal facilities; failed to take all necessary measures to remove excess
sludge from the treatment facility; and allowed excessive amounts of sludge to
accumulate in the primaries.
Failure
by Respondent to operate and or maintain its wastewater treatment facilities as
required by its NPDES permit is in violation of 327 IAC 5-2-8(8) and part
II.B.1.(a) of its Permit.
f)
Pursuant to 327
IAC 5-2-8(1) and parts I.A.1 and II.A.1, Respondent is required to comply with
all terms and conditions of its Permit.
Any permit noncompliance constitutes a violation of the Clean Water Act
and IC 13, and is grounds for enforcement action.
As evidenced by the violations cited in paragraphs a. through f. above, Respondent
has violated 327 IAC 5-2-8(1) and parts I.A.1 and II.A.1 of its Permit.
g)
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 in any form which
causes or would cause pollution which violates rules, standards, or discharge
and emission requirements adopted by the appropriate board pursuant to this
title.
As
described in subparagraphs a. through g. above, Respondent discharged
pollutants into
6.
On April 12,
2007, representatives of Respondent met with IDEM to discuss the
above-described events. At that time
Respondent described its response to the events. It was generally agreed that a discharge from
Vivolac Cultures Corporation was a major contributing factor to the events
described herein.
7.
On July 11,
2007, representatives of IDEM met with Respondent to discuss the NOV and Agreed
Order. Respondent did not agree with all
of the findings, nor how they were presented in the documents. Much discussion ensued over exactly what
happened, when it happened and when all of the parties were aware of the events
as they occurred. Some of the Findings
above have been revised to reflect that discussion. Specific points that were discussed include:
a. In
various places in Paragraph 5 above, this document originally indicated that
there were deposits of sludge in the creek.
While there was a documented discharge of partially treated or untreated
wastewater, the discharge of concentrated sludge was not observed and sludge
deposits were not identified in the creek.
All of these references have been revised.
b. The
original version of Paragraph 5. g. indicated that Respondent had not complied
with Part II.A.2 of the NPDES permit due to its failure to respond or take
action to mitigate adverse impacts. That
language has been deleted. Upon
notification by IDEM of the events at the wastewater treatment plant,
Respondent undertook a substantial response to the discharge, in cooperation
with IDEM staff.
c. The
original version of Paragraph 5. f. indicated that Respondent had not responded
to the reportable spill. Respondent did
in fact respond to the spill and cooperated with IDEM throughout the
process. Respondent did however not call
the spill line in a timely basis, although it has claimed protection under 327
IAC 2-6.1-8 for its late reporting.
d. The
original version of Paragraph 5. d indicated that Respondent had violated
section 405 A of the Clean Water Act and part II.B.4. of its NPDES permit by
allowing the discharge of a large quantity of sludge into
8.
In recognition
of the settlement reached, Respondent waives any right to administrative and
judicial review of this Agreed Order.
I.
ORDER
1.
This Agreed
Order shall be effective (“Effective Date”) when it is approved by Complainant
or Complainant’s delegate, and has been received by Respondent. This Agreed Order shall have no force or
effect until the Effective Date.
2.
Respondent shall
comply with statutes, rules, and/or permit conditions or listed in the findings
above.
3.
Within thirty (30)
days of the Effective Date, Respondent shall develop and submit to IDEM for
approval a Compliance Plan (“CP”) which identifies actions that it will take to
achieve and maintain compliance with the Permit, specifically including the
actions Respondent will take to:
a. maintain
and efficiently operate the WWTP at all times;
b. assure
proper removal, storage and disposal of sludge solids without runoff into
waters of the state;
c.
comply with
reporting requirements of the Permit; and
d.
assure that current
and future customers and/or users of its WWTP do not discharge pollutants to
the sanitary sewers that are in amounts sufficient to be toxic or to cause pass
through or interference with the operation of the sewers or WWTP.
The
CP shall include an implementation and completion schedule, including specific
milestone dates.
4. Respondent shall immediately upon the Effective Date of this
order send a monthly email containing the Monthly Report of Operation (Excel) to
IDEM specifically to Phil Preston at ppreston@idem.IN.gov
by the 15th day of the next month.
5. Respondent
shall, within six (6) months of completion of the CP required by Paragraph 3
above (Performance Period), demonstrate five (5) consecutive months of
compliance (Compliance Demonstration) with the effluent limitations contained
in the Permit. During the Performance
Period, 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 days (60) 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 the Permit. The Additional Action Plan, if required,
shall include an implementation and completion schedule, including specific
milestone dates.
6. The
plans required by Paragraphs 3 and 5 above are subject to IDEM approval. In the
event IDEM determines that any plan submitted by Respondent is deficient or
otherwise unacceptable, Respondent shall revise and resubmit the plan to IDEM
in accordance with IDEM’s notice. After three submissions of such plan by
Respondent, IDEM may modify and approve any such plan and Respondent must
implement the plan as modified by IDEM.
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 by Respondent
to submit any plan by the specified date, or to meet any of the milestones in
the approved plan will subject Respondent to stipulated penalties as described
below. Failure to achieve compliance at
the conclusion of work under an Additional Action Plan will subject Respondent
to additional enforcement action.
7.
Beginning on the
Effective Date of this Agreed Order and continuing until the completion of the
CP provided for by Paragraph 3 above, Respondent shall, at all times, operate
its existing WWTP as efficiently and effectively as possible, and shall be
subject to stipulated penalties for its failure to comply with permit
limitations.
8. All submittals required by this Agreed Order, unless
Respondent is notified otherwise in writing by IDEM, shall be sent to:
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Scott
McGlinchey, Enforcement Case Manager |
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Indiana
Department of Environmental Management |
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Office
of Enforcement – Mail Code 60-02 |
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9.
Respondent is
assessed a civil penalty of Fifty Thousand Eight Hundred Dollars ($50,800). Said penalty amount shall be due and payable
to the Environmental Management Special Fund within thirty (30) days of the
Effective Date. In the event that the
civil penalty is not paid within thirty (30) days of the Effective Date,
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.
In the event the
terms and conditions of the following paragraphs are violated, Complainant may
assess and Respondent shall pay a stipulated penalty in the following amount:
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Order Paragraph Number |
Violation
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Penalty Amount |
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3, 5 |
Failure
to submit or modify the CP, as required, within the given time period. |
$250
per each week |
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4 |
Failure
to submit MRO by required time.
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$250
per each week |
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5 |
Failure
to submit or modify the Additional Action Plan, if required, within the given
time period. |
$250
per each week |
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5 |
Failure
to meet any milestone date set forth in the approved CP. |
$500
per each week |
11.
Stipulated
penalties shall be due and payable within thirty (30) days after Respondent
receives written notice that Complainant has determined a stipulated penalty is
due. Assessment and payment of
stipulated penalties shall not preclude Complainant from seeking any additional
relief against Respondent for violation of this Agreed Order. In lieu of any of the stipulated penalties
set out above, 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.
Pursuant to IC
13-14-10-3, Respondent shall reimburse complainant for the cost incurred by
IDEM in responding to the August 2006 events which are the subject of this
action. IDEM has determined this amount
to be ten thousand one hundred and twenty dollars ($10,120). This dollar amount is strictly for the
purposes of cost recovery, and is separate and distinct from any penalty which
may also be assessed in this case.
Payment shall be made to the Hazardous Substance Response Trust Fund
within thirty days of the Effective Date, and sent to the address listed in
Paragraph 12 below.
13.
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:
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Indiana
Department of Environmental Management |
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Cashier
– Mail Code 50-10C |
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14.
Respondent shall
reimburse the Indiana Department of Natural Resources (“IDNR”) for the value of
the damage to natural resources, under authority of IC 14-22-10-6. IDNR has determined this figure to be seventy
one thousand seven hundred ninety three dollars and forty-seven cents. ($71,793.47). Payment shall be made to the Contaminants
Account within thirty (30) days of the Effective Date of this Order, and sent
to the IDNR Division of Fish and Wildlife, Room W-273, IGCS,
15.
This Agreed
Order shall apply to and be binding upon Respondent and 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.
16.
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.
17.
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.
18.
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 Respondents of its obligation to
comply with the requirements of its applicable permits or any applicable
Federal or State law or regulation.
19.
Complainant does
not, by its 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.
20.
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 NOV.
21.
Nothing in this
Agreed Order shall prevent IDEM [or anyone acting on its behalf] from
communicating with the 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 EPA or any other agency or entity.
22.
This Agreed
Order shall remain in effect until Respondent has complied with the terms of
Order Paragraph Nos. 3 through 14 and IDEM issues a Resolution of Case letter.
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TECHNICAL RECOMMENDATION: |
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RESPONDENT: |
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Department of Environmental Management |
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By: |
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By: |
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Mark W. Stanifer, Chief |
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Printed: |
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Water Enforcement Section |
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Title: |
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Office of Enforcement |
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Date: |
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COUNSEL FOR COMPLAINANT: |
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COUNSEL FOR RESPONDENT: |
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For the Department of Environmental Management |
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By: |
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By: |
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Deputy Attorney General |
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Date: |
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Date: |
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APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF
ENVIRONMENTAL |
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MANAGEMENT THIS |
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OF |
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, 2008. |
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For the Commissioner: |
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Signed on February 29, 2008 |
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Robert B. Keene |
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Assistant Commissioner |
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Office of Legal Counsel and Enforcement |
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