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BEFORE THE INDIANA DEPARTMENT OF |
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ENVIRONMENTAL MANAGEMENT |
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COMMISSIONER OF THE DEPARTMENT |
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OF ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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Case No. 2009-18541-S |
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a-1 sEPTIC AND EXCAVATING,
INC., |
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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 A-1 Septic Service & Excavating, Inc., (“Respondent”), which
owns/operates the company located at
3.
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 (NOV) on August 28, 2009,via
Certified Mail to:
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Gregory
Edwards, President |
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Registered Agent |
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A-1
Septic Service & Excavating, Inc., |
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5.
Respondent
was issued a wastewater management vehicle permit on February 14, 2008. Respondent is authorized to pump and haul
domestic septage and grease.
6.
During
an investigation including an inspection on April 17, 2009, conducted by a
representative of IDEM, the following violations were found:
a. Pursuant
to 327 IAC 7.1-3-1, any person providing or engaging in wastewater management shall
comply with the following:
(1) Unless
exempted by IC 13-18-12-7, possess a valid wastewater management permit, in
addition to any of the following that are applicable as required by this
article:
(B) A
valid approval for land application of wastewater.
As noted during the April 17, 2009,
inspection, Respondent had no valid approval for land application of wastewater
management for the site.
b. Pursuant
to 327 IAC 7.1-3-3, (a) each permitted wastewater management business shall
keep accurate records of activities governed by this article.
(b) The
records must include the following:
(1) The
contract or invoice of all wastewater management activities.
(2) The
date, location, and method of disposal of wastewater associated with the
contract or invoice as required by 327 IAC 7.1-6-1(b).
(3) Land
application records as required by 327 IAC 7.1-8-7.
(c) Such
records must be:
(1) located
at the permitted wastewater management business address;
(2) made
available to representatives of the commissioner during normal business hours for
inspection as set forth in IC 13-142-2;
(3) updated
weekly, except as required at 327 IAC 7.1-8-7(a)(5); and
(4) maintained
for at least five (5) years.
As noted during the April 17, 2009,
inspection, Respondent could not produce records that document all wastewater
management activities being conducted by Respondent.
c. Pursuant
to 327 IAC 7.1-4-4(a), the commissioner may include conditions in a permit that
ensure compliance with this article. All wastewater management permits issued
are subject to the following conditions and such additional conditions as
stated in the permit:
(3) The
permittee shall provide wastewater management services in a manner that does not
create a threat to human health or the environment, including the following:
(A) Pumping,
dumping, or allowing the leakage or drainage of wastewater onto any unauthorized
premises, ground surfaces, public roads, or into the waters of the state is prohibited.
(D) Water
used for flushing or cleaning purposes must be disposed of in the same manner as
required by this article for wastewater disposal.
As noted during the April 17, 2009,
inspection, there was evidence of wastewater being dumped or allowed to drain
onto a hayfield which is adjacent to and directly north of the business
office. This area is not authorized to
accept wastewater, which includes wastewater used for flushing or cleaning of
tanks.
d. Pursuant
to 327 IAC 7.1-4-7, (a) all wastewater treatment facilities or Wastewater
storage facilities must be designed in compliance with this article.
(d) Underground
steel tanks for the storage or treatment of wastewater are prohibited.
As noted during the April 17, 2009,
inspection, a large underground steel tank used to store wastewater was located
near the storage shed.
e. Pursuant
to 327 IAC 7.1-4-1(c), if the applicant intends to store wastewater, or treat wastewater
by altering the nature of domestic septage, a mixed load, or grease, then the permit
application must be accompanied by all of the following:
(1) If
the property where the wastewater storage or treatment facility will be located
is not owned by the applicant:
(A) the
name, mailing address, and telephone number of the property owner; and
(B) a
statement, signed by the property owner, granting permission to conduct the activities
specified in the application and stating that the activities specified in the application
are not prohibited by any covenant of record.
(2) A
county map clearly indicating the location of the property on which the
facility is proposed.
(3) An
accurate drawing clearly delineating the proposed facility site and the area
within one-quarter (¼) mile of the site in all directions. The drawing must use
a scale of one (1) inch per one hundred (100) feet and show north. The drawing
shall clearly and accurately indicate the location of all features of interest,
including the following:
(A) Potable
water supplies.
(B) Lakes,
ponds, streams, intermittent waterways, surface water impoundments, wetlands,
or other bodies of water.
(C) Drainage
inlets and tile systems.
(D) Rock
outcrops, sinkholes, or undrained depressions.
(E) The
location of all property lines, easements, and public roads.
(F) The
critical habitat of endangered or threatened species.
(G) Historical
sites.
(4) Plans
and specifications certified by a professional engineer licensed under IC 25-31-1
to practice in
(A) The
design of the facility.
(B) The
capacity of the facility.
(5) A
brief narrative description of the proposed operating plan and maintenance procedures
to be used at the facility.
(6) The
name, address, and phone number of the person, or persons, designated in charge
of the facility.
(7) A
letter from at least one (1) publicly owned treatment works permitted under 327
IAC 5-2 or other state permitted wastewater treatment plant permitted under 327
IAC 5 stating the applicant is authorized to dispose of wastewater at their
facility. If the narrative presented in subdivision (5) states the facility
will be solidifying all wastewater, the applicant must also submit such a
letter from a state permitted municipal solid waste landfill permitted under
the rules of the solid waste management board at 329 IAC 10.
(8) A
signed statement from either the applicant or the property owner and the
applicant, if the applicant is not the property owner, accepting responsibility
for closure in compliance with section 11 of this rule.
As noted during the April 17, 2009,
inspection, Respondent did not submit to IDEM a permit application to store
wastewater.
f. Pursuant
to 327 IAC 7.1-4-4(b), if the applicant intends to store or treat wastewater, the
wastewater management permit shall be issued subject to the conditions
contained in subsection (a), the following conditions, and such additional
conditions as may be stated in the permit:
(1) Except
for wastewater storage or treatment facilities approved prior to the effective date
of this article, all storage or treatment facilities must comply with site
restrictions and be designed and constructed in compliance with this article.
(2) All
facilities must be operated in compliance with this article.
As noted during the April 17, 2009,
inspection, Respondent did not obtain a permit from IDEM to ensure that the
facility complies with site restrictions and is designed and constructed, and
operated in compliance with this article.
g. Pursuant
to 327 IAC 7.1-6-1(b), completion of wastewater removal includes the following:
(3) Providing
the customer with a completed, legible invoice showing the following:
(C) The
amount of wastewater removed from the system in gallons.
As noted during the April 17, 2009,
inspection, Respondent did not provide all of the required information to
customers.
h. Pursuant
to 327 IAC 7.1-7-1, (d) Wastewater may be disposed of at an approved land application
site as follows:
(1) Wastewater
may be disposed at land application sites in compliance with this article. The
wastewater may be in the form of grease, domestic septage, or a mixed load. No disposal
of wastewater shall be permitted on the land at any property or location
without a valid land application approval issued under 327 IAC 7.1-8.
(e) Wastewater
may be stored at a storage facility as follows:
(1) Pending
final disposal at an approved land application site.
(2) Facilities
for the storage of wastewater must be constructed or installed in compliance with
this article.
(3) Facilities
for the storage of wastewater must have a valid wastewater management permit
issued under 327 IAC 7.1-4.
As noted during the April 17, 2009,
inspection, Respondent disposed of wastewater at a site that was not approved
and did not have a wastewater storage permit.
On September 14, 2009, IDEM staff
noted that Respondent was no longer causing and/or allowing wastewater septage
to be released into the environment.
i. Pursuant
to IC 13-30-2-1(1), no person shall 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.
As noted during the April 17, 2009,
inspection, Respondent caused and/or allowed wastewater septage to be released
into the environment. There were several
areas observed where wastewater septage had been discharged or allowed to
discharge into the environment.
On September 14, 2009, IDEM staff
noted that Respondent was no longer causing and/or allowing wastewater septage
to be released into the environment.
j. Pursuant
to IC 13-30-2-1(4), no person shall deposit or cause or allow the deposit of contaminants
or solid waste upon the land, except through the use of sanitary landfills, incineration,
composting, garbage grinding, or another method acceptable to the solid waste
management board.
As noted during the April 17, 2009,
inspection, Respondent caused or allowed the deposit of wastewater septage, a
contaminant or solid waste, upon the land in a manner unacceptable to the solid
waste management board.
On September 14, 2009, IDEM staff
noted that Respondent was no longer causing and/or allowing wastewater septage
to be released into the environment.
7.
In
recognition of the settlement reached, Respondent waive 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 ensure that
wastewater is not applied to the land without a valid approval.
3. Upon the Effective Date, Respondent
shall comply with 327 IAC 7.1-3-3.
Specifically, Respondent shall ensure that all records that document
wastewater management activities are being maintained at the site.
4. Within
thirty (30) days of the Effective Date, Respondent shall properly dispose of
all septage and grease from the two (2) underground tanks, pull the tanks from
the ground, and have them properly disposed at a state approved solid waste
management facility.
5. Within
forty-five (45) days of the Effective Date, Respondent shall submit
documentation of proper disposal of the septage, grease and tanks to IDEM.
6. Upon
the Effective Date, Respondent shall comply with 327 IAC 7.1-6-1. Specifically, Respondent shall ensure that
all invoices contain all the required information including the amount of
wastewater removed from the system in gallons.
7. All
submittals required by this Agreed Order, unless Respondent is notified
otherwise in writing by IDEM, shall be sent to:
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Idelia
Walker-Glover, Enforcement Case Manager |
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Office
of Land Quality – Mail Code 60-02L |
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Indiana
Department of Environmental Management |
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8. Respondent
is assessed a civil penalty of Ten Thousand Eight Hundred Dollars
($10,800). Said penalty amount shall be
due and payable to the Environmental Management Special Fund. Four Hundred Fifty Dollars ($450.00) shall be
due within thirty (30) days of the Effective Date of this Agreed Order. The remaining Ten Thousand Three Hundred Fifty
Dollars ($10,350) shall be due in twenty three (23) consecutive monthly
payments of Four Hundred Fifty Dollars ($450.00) to begin sixty (60) days from
the Effective Date of this Agreed Order.
In the event that the civil penalty is not paid in full within seven
hundred thirty days (730) 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.
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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$500 per week or part thereof |
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$250 per week or part thereof |
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10. 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.
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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Cashier
– Mail Code 50-10C |
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12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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.
18. Nothing in this Agreed
Order shall prevent IDEM 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.
19. This
Agreed Order shall remain in effect until IDEM issues a Resolution of Case letter
to Respondent.
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TECHNICAL RECOMMENDATION: |
RESPONDENT: |
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Department of Environmental Management |
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By: _________________________ |
By:
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Nancy
Johnston, Section Chief |
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Enforcement
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Printed: ______________________ |
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Office of Land 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: _______________________ |
Date: ______________________ |
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APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF
ENVIRONMENTAL |
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MANAGEMENT
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DAY
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,2010 |
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For the Commissioner: |
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Signed 4-5-2010 |
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Bruce
H Palin |
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Assistant Commissioner |
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Office of Land Quality |
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