STATE OF INDIANA

COUNTY OF MARION

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BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v.

LAND-O-SUN DAIRIES, LLC,

Respondent.

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Case No. 2010-19159-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 Land-O-Sun Dairies, LLC (Respondent), which owns and operates a dairy product manufacturing facility with an industrial wastewater treatment facility located at 400 South Chamber Road, Decatur, Adams County, Indiana (the Site).

 

3.         Respondent is authorized by Industrial Wastewater Permit (IWP) Permit Number INP000197 (the Permit) to discharge wastewater treated in accordance with the terms and conditions of the IWP Permit from its industrial wastewater treatment facility into the Decatur Publicly Owned Treatment Works (POTW) from Outfall 001.  Outfall 001 is designated as the combined wastestreams at the point of discharge to the POTW.

 

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 (NOV) via Certified Mail to:

 

Land-O-Sun Dairies, LLC

Land-O-Sun Dairies, LLC

Brett Johnson, VP Operations East

CT Corporation System

1126 Kilburn Avenue

251 E. Ohio St., Suite 1100

Rockford, IL  61101

Indianapolis, IN  46204

 

6.         Pursuant to IC 13-30-2-1(1), a person may not discharge, emit, cause, allow, or threaten to discharge, emit, cause, or allow any contaminant or waste into the environment or any publicly owned treatment works in any form that causes or would cause pollution.

 

Pursuant to 327 IAC 2-1-6(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 that do any of the following:

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.

 

During an inspection conducted by IDEM staff on March 17, 2010, it was observed that wastewater had overflowed from Respondent's treatment tanks into the secondary containment area at the Site.  The cleanup of this spill appeared to have allowed partially treated waste to be washed off site with storm water into a storm water drainage swale, resulting in the potential discharge of industrial substances into waters of the State in violation of IC 13-30-2-1(1) and 327 IAC 2-1-6(a).

 

7.         Pursuant to 327 IAC 2-6.1-4(11), 'objectionable substances' means substances that are:  (A) of a quantity and a type; and (B) present for a duration and in a location; so as to damage waters of the state.

 

Pursuant to 327 IAC 2-6.1-4(15), a 'spill' means 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 2-6.1-5, spills of objectionable substances as defined in 327 IAC 2-6.1-4(11) to soil within the facility boundary, and spills to surface waters, must be reported.

 

Pursuant to 327 IAC 2-6.1-7, any person who operates, controls, or maintains any facility from which a spill occurs is required, upon discovery of a reportable spill to soil or surface waters of the state, to do the following:

a.         Contain the spill, if possible, to prevent additional spilled material from entering the waters of the state.

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 IDEM.

d.         Submit to the IDEM, a written copy of the spill report if requested in writing by the department.

e.         Except from modes of transportation other than pipelines, exercise due diligence and document attempts to notify the following:

(1)       For spills to surface water that cause damage, the nearest affected downstream water user located within ten miles of the spill and in the state of Indiana; and

(2)       For spills to soil outside the facility boundary, notify the affected property owner or owners, operator or operators, or occupant or occupants.

 

Pursuant to Part II.A.6 of the Permit, Respondent is required to comply with the spill reporting, containment, and response requirements in accordance with 327 IAC 2-6.1.

 

Subsequent to the inspection conducted by IDEM staff on March 17, 2010, it was determined that the spill of wastewater described in Paragraph 6 above constituted a reportable spill event as defined in 327 IAC 2-6.1 and Part II.A.6 of the Permit, and that Respondent failed to report, contain, and perform a proper spill response, in violation of 327 IAC 2-6.1-5, 327 IAC 2-6.1-7, and Part II.A.6 of the Permit.

 

8.         Pursuant to 327 IAC 5-2-8(1) and Part II.A.1 of the Permit, Respondent is required to comply with all conditions of the Permit.  Any permit noncompliance constitutes a violation of the Clean Water Act and IC 13 and is grounds for an enforcement action.

 

Pursuant to Part I.A.1.3 of the Permit, Respondent is required to monitor BOD5 and TSS using 24-hour composite flow-proportional samples consisting of aliquots withdrawn throughout the daily discharge period.  The aliquots may be:  (i) uniform aliquots withdrawn at uniform flow intervals; or (ii) flow-proportional aliquots withdrawn at uniform time intervals.

 

During the inspection conducted by IDEM staff on March 17, 2010, it was observed that there were flow meters installed at both the process line and the sanitary line as they discharge into the final manhole, which together measure the total discharge flow.  However, the reading from those meters are used for reporting to the City and the on-site operator does not have access to those readings and does not perform 24-hour composite flow-proportional sampling, in violation of Part I.A.1.3 of the Permit, 327 IAC 5-2-8(1) and Part II.A.1 of the Permit.

 

9.         Pursuant to Part I.A.1.[1] and [4] of the Permit, Outfall 001 is designated as the combined wastestreams at the point of discharge to the POTW, and the flow at the sample site must be measured and recorded by valid flow-measurement device, not estimated.

 

As noted above in Paragraph 8, during the inspection conducted by IDEM staff on March 17, 2010, it was observed that the total discharge flow readings were not available to the on-site operator and the flow readings that have been recorded on Monthly Monitoring Reports (MMRs) have consisted of only the wastewater treatment system discharge, and not the combined wastestreams, in violation of Part I.A.1.[1] and [4] of the Permit, 327 IAC 5-2-8(1) and Part II.A.1 of the Permit.

 

10.      Pursuant to 327 IAC 5-21-6(a) and Part I.A of the Permit, Respondent is required to comply with the effluent limitations contained in the Permit that are applicable to the discharges from Outfall 001.

 

IDEM records, including Discharge Monitoring Reports (DMRs) and MMRs submitted by Respondent to IDEM for the period from October 1, 2008 through March 31, 2010, indicate that Respondent failed to comply with effluent limitations contained in the Permit, in violation of 327 IAC 5-21-6(a), 327 IAC 5-2-8(1), and Part I.A and Part II.A.1 of the Permit, as follows:

 

A.        The daily maximum concentration discharge limitation for BOD5 was violated during one or more days during December 2008, January, March, June, and July of 2009, and January and March 2010.

 

B.        The daily maximum concentration discharge limitation for TSS was violated during one or more days during October and November 2008, February, March, April, June, October, November, and December 2009, and January 2010.

 

C.       The daily maximum concentration discharge limitation for Oil and Grease was violated during one or more days during March 2009, and January 2010.

 

11.       Pursuant to 327 IAC 5-21-6(c) and Part II.A.5 of the Permit, if Respondent does not or will not be able to comply for any reason with any discharge limitation specified in the Permit, Respondent is required to provide IDEM and the City of Decatur with the following information in writing, within twenty-four (24) hours of becoming aware of the noncompliance.

 

A.        A description of the discharge and cause of noncompliance.

 

B.        The period of noncompliance, including exact dates and times of the noncomplying event and the anticipated time when the discharge will return to compliance.

 

C.        Steps being taken to reduce, eliminate, and prevent recurrence of the noncomplying discharge.

 

A record review indicates that Respondent failed to notify IDEM within 24 hours of becoming aware of any of the violations of effluent limitations referenced in Paragraph 7 above, in violation of Part II.A.5 of the Permit, 327 IAC 5-2-8(1) and Part II.A.1 of the Permit.

 

12.       Prior to October 15, 2010, Respondent installed and initiated operation of a valid flow measurement device and is now taking BOD5 and TSS 24-hour composite flow-proportional samples and is monitoring and recording the combined wastestream at Outfall 001.

 

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 statutes, rules, and permit conditions listed in the findings above at issue.

 

3.         Respondent shall undertake the actions specified in this Order in order to prevent future wastewater spills from its industrial wastewater treatment facility onto the ground or into any waters of the state.

 

4.         Should a reportable spill of wastewater occur at the Site, Respondent shall comply with 327 IAC 2-6.1-5 and 7, and contain the spill, accomplish a proper spill response, communicate a spill report to IDEM as soon as possible but within 2 hours of discovery, submit a written copy of the spill report if it is requested by IDEM, and notify downstream water users and/or affected parties as required.

 

5.         Respondent shall continue to take BOD5 and TSS 24-hour composite flow-proportional samples as required by the Permit, maintain records of the monitoring records as required by Part I.C.4 of the Permit, and make such records available for review as required by Part I.C.6 of the Permit.

 

6.         Respondent shall continue to monitor and record the combined wastestream at Outfall 001 as required by Part I.A.1.[1] and [4] of the Permit.

 

7.         If Respondent is not or will not be able to comply for any reason with any discharge limitation specified in the Permit, Respondent will provide IDEM and the City of Decatur with the information required by Part II.A.5 of the Permit within 24 hours of becoming aware of the noncompliance.

 

8.         Within 30 days of the Effective Date, Respondent shall complete a comprehensive analysis of its industrial wastewater treatment facility and determine whether or not it can maintain consistent compliance with its discharge limitations.

 

If Respondent determines that its wastewater treatment facility can maintain consistent compliance with its discharge limitations, then Respondent shall, within 30 days of the Effective Date, submit written notification to IDEM that it has completed the analysis and has determined that its facility can consistently meet its discharge limitations, and Respondent will immediately begin the 6 month Performance Demonstration required by Paragraph 9 below.

 

If Respondent determines that its wastewater treatment facility can not maintain consistent compliance with its discharge limitations, Respondent shall, within 30 days of the Effective Date, submit notification to IDEM that it has completed the analysis and has determined that its facility can not consistently meet its discharge limitations, and within 60 days of the Effective Date, Respondent shall develop and submit to IDEM for approval a Compliance Plan (“CP”) which identifies actions that Respondent will take to achieve and maintain consistent compliance with its discharge limitations required in its IWP Permit.  The CP shall include an implementation and completion schedule, including specific milestone dates.

 

9.         Upon Respondent's submittal of notification that it has completed the analysis and has determined that its facility can consistently meet its discharge limitations pursuant to Paragraph 8 above, or upon completion of the upgrades set forth in the CP pursuant to Paragraph 8 above, Respondent shall demonstrate 6 consecutive months of compliance (“Initial Compliance Demonstration”) with no spills of wastewater at the Site and no discharge limitation exceedances.  During the Initial Compliance Demonstration period, Respondent will not be subject to stipulated penalties, as specified below, for any discharge limitation exceedance.

 

In the event that Respondent fails to successfully complete the 6 month Initial Compliance Demonstration, Respondent shall, within 60 days of becoming aware that the Initial 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 prevent spills and to achieve and maintain compliance with the discharge limitations in its IWP Permit.  The Additional Action Plan, if required, shall include an implementation and completion schedule, including specific milestone dates.

 

Upon completion of the Additional Action Plan, Respondent shall demonstrate 6 consecutive months of compliance ("Final Compliance Demonstration") with no spills of wastewater at the Site and no discharge limitation exceedances.  During the Final Compliance Demonstration period, Respondent may be subject to stipulated penalties, as specified below, for any discharge limitation exceedance.

 

10.       The plans required by Paragraphs 8 and 9 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 implement the approved plan and according to the milestone dates therein.  The approved CP 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 may subject Respondent to stipulated penalties as described below.  Failure to achieve compliance at the conclusion of work under an Additional Action Plan may subject Respondent to additional enforcement action.

 

11.       Beginning on the Effective Date and continuing until the successful completion of the requirements of this Agreed Order, Respondent shall, at all times, operate its existing wastewater treatment plant as efficiently and effectively as reasonably possible, and may be subject to stipulated penalties for its failure to comply with the discharge limitation requirements of the Permit.

 

12.       All submittals required by this Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall be sent to:

 

Terry Ressler, Enforcement Case Manager

Indiana Department of Environmental Management

Office of Water Quality – Mail Code 60-02W

100 North Senate Avenue, Room 1255

Indianapolis, IN 46204-2251

 

13.       Respondent is assessed a civil penalty of Eighteen Thousand Two Hundred and Fifty-Seven Dollars ($18,257).  Within thirty days of the Effective Date of the Agreed Order, Respondent shall pay a portion of this penalty in the amount of $3,651.  Said penalty amount shall be due and payable to the Environmental Management Special Fund.  In lieu of payment of the remaining civil penalty, Respondent shall perform and complete a Supplemental Environmental Project (SEP).  Respondent estimates that this SEP will cost $50,800.  Within 30 days of completing this SEP, Respondent shall submit written notice and documentation to IDEM which substantiates all actions taken and costs incurred with respect to the SEP.  In the event that the cost of the SEP is less than $43,817, Respondent shall pay one-third of the difference between the proposed cost of the SEP ($43,817) and the actual cost of the SEP.

 

As a Supplemental Environmental Project, Respondent shall install automated flocculation-inducing valves at Respondent's pretreatment facility at its a dairy product manufacturing facility at the Site, and develop and submit a document to a national trade journal for national publication illustrating transferable concepts on how to maximize performance of pipe flocculators with automated flocculation-inducing valves.  Respondent shall complete the SEP by no later than one year from the Effective Date of this Agreed Order.   Implementation of this SEP is expected to result in up to 40 percent reduction in effluent TSS and BOD concentrations discharged to the City of Decatur sewer system, allowing the City of Decatur to have greater flexibility in accommodating wasteloads from others.  The publication from this SEP should enable practitioners nation-wide to significantly improve effluent BOD and TSS quality being discharged from treatment units (particularly DAFs) downstream of pipe flocculators.

 

In the event that Respondent does not complete the SEP within one year from the Effective Date of this Agreed Order, the full amount of the civil penalty as stated in paragraph 13 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 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 days after the Effective Date until the full civil penalty is paid.

 

14.       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:

 

Paragraph

Violation

 

Stipulated Penalty

 

3

For any reportable wastewater spill outside secondary containment.

$300 per spill

4

Failure to comply with any requirement of 327 IAC 2-6.1-5 and 7.

$300 per violation

5

Failure to take 24-hour composite flow-proportional samples of the combined wastestream at Outfall 001, maintain records, and/or make such records available for review.

$300 per violation

7

Failure to provide IDEM and the City of Decatur with the information required by Part II.A.5 of the Permit within 24 hours of becoming aware of any exceedance of discharge limitation specified in the Permit.

$300 per violation

8

Failure to complete the comprehensive analysis and submit notification that it has completed the analysis and has determined that its facility can, or can not, consistently meet its discharge limitations within 30 days of the Effective Date, unless an extension has been granted.

$300 per each week late

8

If Respondent determines that its facility can not consistently meet its discharge limitations, failure to submit the CP, as required, within 60 days of the Effective Date, unless an extension has been granted.

$300 per each week late

9

Failure to submit or modify the Additional Action Plan, if required, within the given time period, unless an extension has been granted.

$300 per each week late

10

Failure to revise and resubmit the CP or Additional Action Plan if required.

$300 per each week

8 &10

Failure to meet any milestone date set forth in the approved CP or Additional Action Plan if required, unless an extension has been granted.

$500 per each week late

9 & 11

Failure to comply with the discharge limitation requirements of the Permit after the start of the Final Compliance Demonstration, unless an extension has been granted.

$500 per each violation

 

15.       Stipulated penalties shall be due and payable within 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.

 

16.       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

Cashier – Mail Code 50-10C

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

17.       This Agreed Order shall apply to and be binding upon Respondent, 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.

 

18.       Force majeure, for purposes of this Agreed Order, is defined as any event arising from causes totally beyond the control and without fault of Respondent that delays or prevents the performance of any obligation under this Agreed Order despite Respondent’s best efforts to fulfill the obligation.  The requirement that 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 (1) changed business or economic conditions; (2) financial inability to complete the work required by this Agreed Order; or (3) increases in costs to perform the work.

 

Respondent shall notify IDEM by calling the case manager within three (3) calendar days and by writing no later than seven (7) calendar days after it has knowledge of any event which Respondent contends is a force majeure.  Such notification shall describe (1) the anticipated length of the delay; (2) the cause or causes of the delay; (3) the measures taken or to be taken by Respondent to minimize the delay; and (4) the timetable by which these measures will be implemented.  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 Respondent from asserting any claim of force majeure for that event. 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 performance under this Agreed Order, by the amount of time that is directly attributable to the event constituting the force majeure.

 

19.       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.

 

20.       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 require that all contractors, firms and other persons performing work under this Agreed Order comply with the terms of this Agreed Order.

 

21.       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 permits or any applicable Federal or State law or regulation.

 

22.       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.

 

23.       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 and/or this Order.

 

24.       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.

 

25.       This Agreed Order shall remain in effect until Respondent has complied with all terms and conditions of Order Paragraph Nos. 3 through 16 and IDEM issues a Resolution of Case letter.

 

TECHNICAL RECOMMENDATION:

RESPONDENT:

Department of Environmental Management

Land-O-Sun Dairies, LLC

 

 

By: ________________________

By:  ________________________

 

Mark W. Stanifer, Chief

 

 

Water Enforcement Section

Printed: ______________________

Office of Water Quality

 

 

Title: ________________________

 

 

Date: __________________

Date: _______________________

 

 

 

 

COUNSEL FOR COMPLAINANT:

COUNSEL FOR RESPONDENT:

For the Department of Environmental Management

 

 

 

By: ____________________

By: ______________________

 

 

Date: _______________________

Date: ______________________

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS ______ DAY OF _____________________, 20___.

 

 

For the Commissioner:

 

 

 

Signed on January 20, 2011

 

Bruno Pigott

 

Assistant Commissioner

 

Office of Water Quality