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STATE OF |
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BEFORE
THE INDIANA DEPARTMENT |
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COMMISSIONER
OF THE DEPARTMENT Complainant, v. WESTHAVEN
MOBILE HOME PARK, 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 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 Westhaven Mobile Home Park, LLC, dba Westhaven Estates, a division of R
& R Enterprises, Inc. (“Respondent”) which owns and operates the 0.034 MGD
extended aeration wastewater treatment facilities located at 3762 W. Old US 30,
near Warsaw, in Kosciusko County, Indiana (the “Site”). There are three wastewater treatment plant
units serving 218 trailers and a laundry.
The east plant serves 123 trailer units discharging to a storm sewer. The west and southwest side-by-side units
serve 95 trailers and a laundry. These
two treatment units share a contact tank and flow meter and discharge to a
storm sewer, separate from the east plant. These two discharge sewers merge on
the south side of Old U.S. Highway 30.
3.
Respondent
is authorized by National Pollutant Discharge Elimination System (“NPDES”)
Permit Number IN 0041726 (“Permit”) to discharge wastewater treated in
accordance with the terms and conditions of the NPDES Permit from its WWTP into
receiving waters named the
4.
IDEM
has jurisdiction over the parties and the subject matter of this action.
5.
Pursuant
to IC 13-30-3-3, IDEM issued a Notice of Violation on January 29, 2009, via
Certified Mail, to Russel Fahl, President, Owner and Registered Agent,
6.
During
an investigation conducted by a representative of IDEM, the following
violations were found:
a.
Pursuant
to 327
Pursuant
to Part I.A.2 of the Permit, and 327 IAC 2-1-6(a)(1), 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 sufficient 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.
Pursuant
to Indiana Code (“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.
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 which causes or would cause pollution which
violates rules, standards, or discharge or emission requirements adopted by the
appropriate board under the environmental management laws.
During
inspections at the Site by IDEM representatives on August 12, 2008, and October
30, 2008, the WWTP effluent was observed by IDEM to be turbid and was causing
sludge deposits at Outfall 001 and extending approximately 200 to 300 feet
downstream of the outfall point and across approximately 1/3 of the
b.
Pursuant to 327 IAC 5-2-8(8) and Part
II.B.1 of the Permit, Respondent shall 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 or used by
Respondent and necessary for achieving compliance with the terms and conditions
of the permit.
Respondent
failed to maintain its sewer system and/or to operate it as efficiently as
possible, evidenced as specified below, in violation of 327 IAC 5-2-8(1), 327
IAC 5-2-8(8), and Parts II.A.1 and II.B.1 of the Permit:
IDEM’s
documentation on its NPDES Facility Notice of Inspection and the Inspection Summary
Letters of the Site inspections of Respondent’s WWTP on August 12, 2008, and or
October 30, 2008, identified:
a)
Respondent’s failure to maintain/properly operate its wastewater system; the
chlorine contact tank contain sludge solids and the sludge was only a few
inches from the surface of the chlorine contact tank; and
b)
Respondent’s failure to maintain existence of chlorine tablets in the
chlorinator at the time of the October 30 inspection and therefore failed to
provide chlorination/disinfection of the effluent prior to discharge.
c.
Part
I.A.1 of the Permit contains the final effluent limitations applicable to the
discharge from Outfall 001.
IDEM sampling results of a grab sample
taken at approximately 2:30 p.m. on October 30, 2008, at the Outfall 001
discharge pipe reveal violation of final effluent limitations contained in Part
I.A.1 of the Permit as follows:
a)
The
effluent was visually turbid with sludge accumulation in the sample container.
b)
The
E. coli bacteria result was >2,400 cfu/100 ml which is a violation of
the numeric effluent limitation for E. coli bacteria daily maximum of
235 cfu/100 ml.
d.
Pursuant
to 327 IAC 5-2-8(3) and Part II.A.2 of the Permit, Respondent shall take all
reasonable steps to minimize or correct any adverse impact to the environment
resulting from noncompliance with the Permit.
During periods of noncompliance, Respondent shall conduct such
accelerated or additional monitoring for the affected parameters, as appropriate
or as requested by IDEM, to determine the nature and impact of the
noncompliance.
Respondent
failed to mitigate and remove sludge deposits that were cited in correspondence
dated September 17, 2008, and December 30, 2008, in violation of 327 IAC
5-2-8(3) and Part II.A.2 of the Permit.
7.
On
October 31, 2008, the Kosciusko County Health Department issued a notice to
Respondent to stop discharging poorly treated wastewater into the
8.
Additional
violations were cited in an Amended Notice of Violation signed dated February
23, 2009, including:
a)
Kosciusko
County Health Department sampling by grab sample on October 31, 2008, from
Respondent’s Outfall 001 discharge into the
b)
b)During
an inspection at the Site by IDEM representatives on January 26, 2009, the WWTP
effluent was observed by IDEM to be turbid and contained excessive sludge, in
violation of Part I.A.2 of the Permit and
327 IAC 5-2-8(1),
327 IAC 2-1-6(a)(1), IC
13-18-4-5 and IC 13-30-2-1.
c)
Respondent failed to maintain its
wastewater treatment system and/or to operate it as efficiently as possible,
evidenced as specified below, in violation of 327 IAC 5-2-8(1), 327 IAC
5-2-8(8), and Parts II.A.1 and II.B.1 of the Permit: IDEM’s documentation on
its NPDES facility inspection report of the Site inspection of Respondent’s
WWTP on January 26, 2009, of Respondent’s WWTP effluent appearance to be rated
unsatisfactory due to the IDEM observation of turbid effluent and excessive
sludge discharge from the WWTP.
d)
Part
I.A.1 of the Permit contains the final effluent limitations applicable to the
discharge from Outfall 001.Discharge Monitoring Reports and Monthly Reports of
Operation submitted by Respondent to IDEM for the period of February 2007
through July 2008 reveal violations of final effluent limitations contained in
Part I.A.1 of the Permit as follows:
The daily maximum E.
coli effluent limitation was exceeded during April, May, June, July,
August, September, and October 2007 and June and July 2008.
The weekly maximum and
monthly average pounds per day effluent limitations for Total Suspended Solids
were exceeded during February 2007.
These failures to meet effluent limitations contained in the
Permit are in violation of 327 IAC 5-2-8(1) and Parts I.A.1 and II.A.1. of the
Permit.
9.
On
March 10, 2009, Respondent employed a different certified wastewater treatment
plant operator. On April 8, 2009, IDEM
conducted a follow up inspection. On May
3, 2009, the IDEM inspector met with Respondent, the consulting engineer, and
the wastewater plant operator regarding compliance actions. In October 2009, Respondent implemented
installation of two 1,500 gallon tanks for sludge. Respondent will arrange for improved
disinfection of the treated wastewater.
Respondent has removed from the
10.
During
the on-site IDEM inspection on November 6, 2009, sludge was evident in the
Tippecanoe River near Respondent’s wastewater plant outfall, there had been
numerous elevated levels of E.coli bacteria effluent violations during April 1
through September 30, 2009, and the wastewater from the decanting of the
sludge holding tanks was entering the final discharge from the West Aeration
Plant. This decant must go to through
the wastewater treatment process.
Sampling of this decant wastewater stream revealed a result of greater
than 22 mg/l ammonia.
11.
On March 8, 2010, IDEM checked Respondent’s
Outfall 001 and observed that there still remained sludge deposits near the
Outfall that Respondent is to finish cleaning up during low river levels.
12.
Respondent and IDEM conducted additional
settlement discussions on March 11, 2010.
Respondent is arranging for design of necessary wastewater treatment
improvements to achieve consistent compliance with all terms, conditions, and
effluent limits of the NPDES Permit, including adequate disinfection and
dechlorination. Respondent submitted a
construction permit application to IDEM on April 23, 2010 and is revising it in
May 2010.
13.
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
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 rules and/or permit conditions listed in the findings here
and/or above at issue.
3.
Respondent
shall, at all times, operate its existing sanitary collection system and WWTPs
as efficiently and effectively as possible.
4.
Respondent
shall implement Compliance Actions to address the violations listed in the
above Findings:
A.
Respond
timely to any IDEM construction permit application deficiency notice for the
construction of wastewater treatment plant improvements to meet all effluent
limits of the NPDES Permit, including effluent disinfection with standard
minimum detention time of 15 minutes and dechlorination, and complete the
construction and comply with all effluent limits within 90 days of the
effective date of the IDEM construction permit (Compliance Date).
B.
Conduct
removal of remaining sludge at the outfall area in the Tippecanoe River during
low flow river conditions during summer 2010; notify the IDEM case
manager of the planned date for removal; and provide written report by October
1, 2010 documenting the sludge cleanup and disposal, including volume removed,
location noted in a map/drawing indicating footage reference from the Outfall
001 discharge pipe, and disposal record.
5.
Respondent
shall, after the Compliance Date in paragraph 4 A above, be under a Performance
Period and demonstrate no effluent violations of the Permit or solids
discharges from Respondent’s WWTP into the Tippecanoe River for a period of 5
consecutive months plus the first 5 months of the 2011 disinfection season
(April – August). In the event that a discharge of solids or an effluent violation
of the Permit occurs during the Performance Period, the Respondent shall,
within 7 days of becoming aware of the incident, submit to IDEM for its
approval, an Additional Effluent
Limitations Compliance Plan or Solids Management/ Sludge Discharge Prevention
Plan, that includes a description of the additional actions that the Respondent
will take to achieve and maintain elimination of sewage sludge discharges
and/or compliance with effluent limitations of the Permit and a schedule,
including specific milestone dates for initiating and completing such actions.
6.
Respondent
shall notify IDEM, in writing, within 10 days of completion of each action or
milestone contained in any plan pursuant to this Agreed Order. The notification shall include a description
of the action completed and the date it was completed.
7.
All
submittals required by this Agreed Order to be submitted to the case manager,
unless Respondent is notified otherwise in writing by IDEM, shall be sent to:
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Paul
Cluxton, Enforcement Case Manager |
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Office
of Water Quality – Mail Code 60-02W |
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Indiana
Department of Environmental Management |
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8.
Respondent
is assessed a civil penalty of Fifty Thousand Dollars ($50,000). Within thirty
(30) days of the Effective Date of the Agreed Order, Respondent shall pay a
portion of this penalty in the amount of Four Thousand Dollars ($4,000). Said penalty amount shall be due and payable
to the Environmental Management Special Fund in two installment payments of
$2,000 each; the first installment due within 30 days of the effective date of
the Agreed Order and the second due within 60 days thereafter. In lieu of
payment of the remaining $46,000 civil penalty, Respondent shall perform and
complete its Supplemental Environmental Project (“SEP”) which will result in
the elimination of NPDES discharge to the
As
a Supplemental Environmental Project, Respondent shall implement its Pollution
Reduction/Pollution Control SEP to connect its wastewater to the
In
the event that Respondent does not complete the SEP within five years of the
effective date of this Agreed Order, the full amount of the civil penalty as
stated in paragraph above, plus interest established by IC 24-4.6-1-101 on the
remaining amount, less the portion of the civil penalty Respondent has already
paid, will be due within fifteen (15) days from Respondent's receipt of IDEM’s
notice to pay. Interest, at the rate
established by IC 24-4.6-1-101, shall be calculated on the amount due from the
date which is thirty (30) days after the Effective Date until the civil penalty
is paid.
9.
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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4 |
Failure to
implement the plan, or to meet any milestone date in the plan. |
$500 per
each week or part thereof late |
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5 |
Failure to
achieve the ceasing of solids discharge or compliance with effluent limits of
the Permit subsequent to completion of implementation of the portion of the
CP required pursuant to Order Paragraph No. 4 (Performance Period). |
$1,000
per incident |
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5 |
Failure
to submit Additional Discharge Elimination or Effluent Limitations Compliance
Plan, if required, with 7 days of becoming aware of violation incident. |
$250 per
each week or part thereof late |
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6 |
Failure
to notify IDEM, in writing, within 10 days of completion of each milestone
contained in any approved plan. |
$250 per
each week or part thereof late |
10.
Stipulated
penalties shall be due and payable within thirty 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
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:
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Indiana
Department of Environmental Management |
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Cashiers
Office – Mail Code 50-10C |
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12.
In
the event that any penalty amount assessed pursuant to Paragraph Nos. 8, 9 and 10 is not
paid within 30 days of notice that it is due, 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 penalty is paid in full.
13.
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.
14.
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.
15.
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.
16.
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 Respondent of its
obligation to comply with the requirements of its applicable permit or any
applicable Federal or State law or regulation.
17.
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.
18.
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.
19.
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.
20.
This
Agreed Order shall remain in effect until Respondent has complied with all
terms and conditions of Order Paragraph Nos. 3 through 12 and IDEM issues a
Resolution of Case letter.
REMAINDER
OF PAGE LEFT BLANK INTENTIONALLY
TECHNICAL
RECOMMENDATION: |
RESPONDENT: |
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Department of
Environmental Management |
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dba Westhaven Estates,
a division of R&R Enterprises,
Inc. |
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By:
________________________ |
By: ________________________ |
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Mark W.
Stanifer, Chief |
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Water Enforcement Section |
Printed:
_____________________ |
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Office
of Water Quality |
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Title:
_______________________ |
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Date:
__________________ |
Date:
_______________________ |
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COUNSEL FOR
COMPLAINANT: |
COUNSEL FOR
RESPONDENT: |
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For the Department of
Environmental Management |
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By: ____________________ |
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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DAY OF |
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,2010 |
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For the
Commissioner: |
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Signed
on June 30, 2010 |
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Bruno
Pigott |
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Assistant
Commissioner |
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Office
of Water Quality |
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