STATE OF INDIANA

COUNTY OF MARION

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SS:

BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v.

HICKS DEVELOPMENT CORPORATION,
dba, PARK PLACE APARTMENTS,

Respondent.

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Case No. 2009-18331-W

 

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 Indiana created by Indiana Code (“IC”) 13-13-1-1.

 

2.                  Respondent is Hicks Development Corporation, dba Park Place Apartments (“Respondent”) which owns the Park Place Apartments located at 2500 W. 6th Street in Bedford, Lawrence County, Indiana (the “Site”).

 

3.                  Respondent owns and operates a private sewage lift station at the Site.

 

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 March 25, 2009, via Certified Mail to:

 

Michael E. Hicks, President and Registered Agent

Hicks Development Corporation, dba Park Place Apartments

1536 I Street

Bedford, IN 47421

 

6.                  During an investigation conducted by a representative of IDEM, the following violations were found:

 

a.                  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 Indiana Administrative Code (“IAC”) 2-6.1-5 and 327 IAC 2-6.1-7, any person who controls any facility from which a spill occurs shall, upon discovery of a spill:

a                    Contain the spill, if possible.

b                    Undertake or cause others to undertake activities needed to accomplish a spill response.

c                    as soon as possible, but within two hours of discovery, communicate a spill report to the Department of Environmental Management, Office of Environmental Response at 1-888-233-7745.

 

During a complaint investigation on December 4, 2008, and January 5, 2009, an IDEM representative noted that Respondent’s sewage lift station serving Park Place Apartments is inoperable and is allowing spillage into a sinkhole/pond immediately south of the facility.  The spill was not reported to IDEM.  Respondent spilled sewage, an objectionable substance, and failed to report the spill and conduct a spill response, in violation of 327 IAC 2-6.1-5 and 327 IAC 2-6.1-7.

 

b.                  Pursuant to Indiana Code (“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 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 sections IC 13-18-4-1 and IC 13-18-4-3.

 

Pursuant to 327 IAC 2-1-6, 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 that produce color, visible oil sheen, odor, or other conditions in such degree as to create a nuisance, or which are in amounts sufficient to be acutely toxic to, or to otherwise severely injure or kill aquatic life, other animals, plants, or humans.

 

An investigation conducted on December 4, 2008 and January 5, 2009 by IDEM staff, indicated that a spill of sewage from Respondent’s lift station entered a sinkhole/pond, in violation of 327 IAC 2-1-6, IC 13-30-2-1, and IC 13-18-4-5.

 

7.                  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 take all necessary steps to, at all times, maintain in good working order and efficiently and effectively operate its sanitary sewer system.

 

4.                  Within thirty (30) days of the Effective Date, Respondent shall submit to IDEM, at the address in Order Paragraph 10 of this Agreed Order, a copy of Respondent’s Spill Response Plan (“SRP”) for the Site.  Attachment “A” of this Agreed Order outlines the elements that need to be included in a SRP.

 

5.                  Within thirty (30) days of the Effective Date of this Agreed Order, Respondent shall develop and submit to IDEM for its approval a Compliance Plan (CP) that includes, but is not limited to, the following:

 

A.                 A description of sizes and a sketch of locations of the sewers and lift stations and a maintenance schedule/plan to assure maintenance of functional pumps in the lift stations.  Include actions that Respondent has taken and will take to rehabilitate and maintain its sewers and lift stations to eliminate sewage overflow/discharges to the environment and assure functional alarm systems.

 

B.                 A description of spill response actions taken and to be taken to cleanup/remove sewage at the spill area.

 

C.                A schedule for initiation and completion of all actions described in the CP, including specific milestone dates.

 

6.                  The plans required by Order Paragraph Nos. 4 and 5 are subject to IDEM approval.  In the event that IDEM determines any plan to be deficient or otherwise unapprovable, Respondent shall, upon written notice by IDEM, revise and resubmit the plan, in accordance with IDEM’s written notice.  If, after three submissions of the plan by Respondent, IDEM finds the plan to be deficient or otherwise unapprovable, IDEM may require Respondent to revise and resubmit the plan, or alternatively, may modify and approve the plan, in which case Respondent shall implement the plan as modified and approved by IDEM.

 

7.                  Upon approval by IDEM, any plan required pursuant to this Agreed Order shall be incorporated into the Agreed Order and shall be deemed an enforceable part thereof.  Respondent, upon receipt of written approval from IDEM, shall immediately implement the approved plan and adhere to the schedule contained therein.

 

8.                  Respondent shall, within 12 months of the completion of the CP required by Order Paragraph No. 5 (Performance Period), demonstrate no sewage discharges from Respondent’s wastewater system during a period of 12 consecutive months.  In the event that a discharge occurs during the Performance Period, Respondent shall be subject to stipulated penalties in Paragraph 12 below, and Respondent shall, within 15 days of becoming aware of the incident, submit to IDEM for its approval, an Additional Discharge Elimination Compliance Plan, that includes a description of the additional actions that Respondent will take to achieve and maintain elimination of discharges and a schedule, including specific milestone dates for initiating and completing such actions.

 

9.                  Respondent shall notify IDEM, in writing, within 10 days of completion of each action or milestone contained in any plan approved by IDEM pursuant to this Agreed Order. The notification shall include a description of the action completed and the date it was completed.

 

10.             All submittals required by this Agreed Order, except as specified below or unless Respondent is otherwise notified in writing by IDEM, shall be sent to:

 

Paul Cluxton, Enforcement Case Manager

Office of Water Quality – Mail Code 60-02W

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

11.             Respondent is assessed a civil penalty of Seven Thousand Eight Hundred Seventy-Five Dollars ($7,875).  Said penalty amount shall be due and payable to the Environmental Management Special Fund within 30 days of the Effective Date.  In the event that the civil penalty is not paid within 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.

 

12.             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:

 

Order Paragraph Number

Violation

Penalty Amount

4

Failure to submit Spill Response Plan as required.

$250 per each week or part thereof late

5

Failure to submit Compliance Plan as required

$250 per each week or part thereof late

6

Failure to submit revised Plan(s), if required.

$250 per each week or part thereof late

7

Failure to implement an approved plan, or to meet any milestone date set forth in any approved plan.

$500 per each week or part thereof late

8

Failure to achieve the ceasing of sewage discharges subsequent to completion of implementation of the portion of the CP required pursuant to Order Paragraph Nos. 5 and 7 (Performance Period).

$1,000 per incident

8

Failure to submit Additional Discharge Elimination Compliance Plan, if required, with the 15 days of becoming aware of violation incident.

$250 per each week or part thereof late

9

Failure to notify IDEM, in writing, within 10 days of completion of each action contained in the approved action plan.

$250 per each week or part thereof late

 

13.             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 Indiana law, including but not limited to, civil penalties pursuant to IC 13-30-4.

 

14.             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

100 N. Senate Avenue

Indianapolis, IN  46204-2251

 

15.             In the event that any penalty amount assessed pursuant to Paragraph Nos. 12 and 13 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.

 

16.             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.

 

17.             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.

 

18.             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.

 

19.             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.

 

20.             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.

 

21.             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.

 

22.             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.

 

23.             This Agreed Order shall remain in effect until Respondent has complied with all terms and conditions of Order Paragraph Nos. 3 through 15 and IDEM issues a Resolution of Case letter.

 

REMAINDER OF PAGE LEFT BLANK INTENTIONALLY

 

TECHNICAL RECOMMENDATION:

 

RESPONDENT:

Department of Environmental Management

 

Hicks Development Corporation

 

 

dba Park Place Apartments

 

By:

 

 

By:

 

 

Mark W. Stanifer, Chief

 

Printed:

 

 

Water Enforcement Section

 

Title:

 

 

Office of Water Quality

 

 

 

Date:

 

 

Date:

 

 

COUNSEL FOR COMPLAINANT:

 

COUNSEL FOR RESPONDENT:

Department of Environmental Management

 

 

 

By:

 

 

By:

 

 

Deputy Attorney General

 

 

Date:

 

 

Date:

 

 

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

 

DAY OF

 

, 200

 

.

 

 

For The Commissioner:

 

 

Signed on May 18, 2009

 

Bruno Pigott

 

Assistant Commissioner

 

Office of Water Quality

 

ATTACHMENT A

 

As required by 327 IAC 2-10-8, a Spill Response Plan will include, but not be limited to, the following:

(1)               The names and telephone numbers of persons who are identified by the Respondent as responsible for implementing the Spill Response Plan.

(2)               Identification of areas where potential spills can occur and their accompanying drainage points.

(3)               Procedures to be followed in the event of a spill, including the following:

 

A)                Actions to contain or manage any spill of sewage

B)                Identification of the proper authorities to be contacted

C)                Mitigation of any adverse effects of the spill

 

(4)               Identification of equipment and clean-up materials to be used in the event of a spill.

(5)               Procedures for reporting the spill to:

 

A)                Any applicable local emergency or health authorities; and

B)                IDEM in accordance with 327 IAC 2-6.1