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STATE OF |
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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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v. |
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Case No.
2011-19899-W |
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Doe Creek sewer utility 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 Indiana Code (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 IC
13-13-1-1.
2.
Respondent
is Doe Creek Sewer Utility Inc, which owns and operates the waste water
treatment plant (WWTP) and collection system serving the Schildmeier
Woods subdivision, with National Pollutant Discharge Elimination System (NPDES)
Permit IN0050148 located at 4264 Creekside Drive, in New
Palestine, Hancock County, Indiana (the Site).
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) via Certified Mail to:
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William Garriot,
Registered Agent |
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Doe Creek Sewer Utility Inc |
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320 Hidden Valley Court |
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Morristown, Indiana 46161 |
5.
During
an investigation conducted by a representative of IDEM, the following violations
were found:
a. Pursuant to 327 IAC 5-2-8(1) and Part II.A.1 of the Permit, Respondent shall comply with all terms and conditions of its Permit.
Part
I.A.1 of the Permit contains the final effluent limitations applicable to the
discharge from Outfall 001 to receiving waters named Doe Creek.
Intergrated
Compliance Information System Reports (ICIS) for the period of May 2008,
through November 2010,
reveal violations of final effluent limitations contained in Part I.A.1 of the
Permit as follows:
The
maximum weekly average concentration effluent limitation for biochemical oxygen
demand (BOD) was violated during December 2008 and September 2009.
The
monthly average concentration effluent limitation for BOD was violated during
September 2009.
The
monthly geometric mean effluent limitation for E.coli
was violated during June 2008, August 2008, April 2009, and May 2009.
The
daily maximum effluent limitation for E.coli
was violated during June 2008, August 2008, September 2008, April 2009, May
2009, September 2009, May 2010, June 2010, and August 2010.
The
monthly average concentration effluent limitation for ammonia nitrogen was
violated during May 2008, June 2008, July 2008, August 2008, September 2008,
November 2008, May 2009, June 2009, May 2010, and August 2010.
The
monthly average loading effluent limitation for ammonia nitrogen was violated
during May 2008, June 2008, July 2008, August 2008, November 2008, May 2009,
and June 2009.
The
maximum weekly average concentration effluent limitation for ammonia nitrogen
was violated during May 2008, June 2008,
July 2008, August 2008, September 2008, November 2008, May 2009, June 2009, May
2010, and August 2010.
The
maximum weekly average loading effluent limitation for ammonia nitrogen was
violated during May 2008, June 2008, July 2008, August 2008, October 2008,
November 2008, May 2009, June 2009, and August 2010.
The
daily average minimum effluent limitation for dissolved oxygen was violated
during May 2008, June 2008, July 2008, August 2008, September 2008, October
2008, November 2008, December 2008, January 2009, May 2009, July 2009, August
2009, January 2010, May 2010, June 2010, July 2010, August 2010, October 2010,
and November 2010.
The
daily minimum effluent limitation for pH was violated during May 2008, June
2008, July 2008, August 2008, September 2008, October 2008, and November 2008.
The
monthly average effluent limitation for total suspended solids was violated in
May 2010.
The
maximum weekly average effluent limitation for total suspended solids was
violated during May 2009, and May 2010.
6. Pursuant
to Part I.B.6 of the Permit the Permitte is required
to record sample results and maintain those records.
On
March 29,
2010 a representative of IDEM found that there were multiple mistakes made with
the data entered on the discharge monitoring report.
7. In
recognition of the settlement reached, Respondents 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. 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 compliance with its NPDES Permit, specifically
including the actions Respondent will take to:
a.
assure
proper removal, storage and disposal of sludge solids without runoff into
waters of the state;
b.
comply with reporting requirements of the
permit; provide self monitoring reports, keep copies of the DMR and MRO on
site, provide and keep records of operator attendance on site, and submit DMR
and MRO to IDEM within the required time.
c.
meet final effluent limits.
The
CP shall include an implementation and completion schedule, including specific
milestone dates.
4. Respondent
shall, within six months of completion of the work required pursuant to the CP
from Paragraph 3 above (Performance Period), demonstrate five consecutive
months of compliance (Compliance Demonstration) with the effluent limitations
contained in its NPDES 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 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 its NPDES Permit. The Additional Action Plan, if required,
shall include an implementation and completion schedule, including specific
milestone dates.
5. The
plans required by Paragraphs 3 and 4 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 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 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.
6.
Beginning
on the Effective Date and continuing until the successful completion of
implementation of the approved CP as required by Paragraph 5 above, Respondent
shall, at all times, operate its existing wastewater treatment plant as
efficiently and effectively as possible, and shall be subject to stipulated
penalties for its failure to comply with permit limitations.
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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Dave
Knox, Enforcement Case Manager |
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Indiana
Department of Environmental Management |
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Office
of Water Quality – Mail Code 60-02W |
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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 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.
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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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, 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 |
10. 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.
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 their
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 Respondents’ 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
Respondents’ 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 [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.
19. This
Agreed Order shall remain in effect until Respondent has complied with all
terms and conditions of Order Paragraph Nos. 3 through 9 and IDEM issues a
Resolution of Case letter.
REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
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TECHNICAL
RECOMMENDATION: |
RESPONDENT: |
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Department of
Environmental Management |
Doe Creek Sewer Utility
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:
_______________________ |
Date:
______________________ |
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APPROVED
AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT
THIS ______ DAY OF _____________________, 20___. |
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For the
Commissioner: |
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Signed on July
26,2011 |
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Bruno
Pigott |
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Assistant Commissioner |
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Office of Water
Quality |
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