STATE OF INDIANA |
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BEFORE THE INDIANA DEPARTMENT OF |
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ENVIRONMENTAL MANAGEMENT |
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COUNTY OF MARION |
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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. 2017-24774-W |
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Morgan Foods,
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 Morgan Foods, Inc. (Respondent), which owns and operates a food canning and
processing facility that includes a wastewater treatment plant (WWTP) located
at 90 West Morgan Street, in Austin, Scott County, Indiana (the Site).
3.
IDEM
has jurisdiction over the parties and the subject matter of this action
pursuant to IC 13-30-3.
4.
Pursuant
to IC 13-30-3 et seq., on January 31, 2018 IDEM issued a Notice of Violation
via Certified Mail to:
Louis Gottsponer
Jr., President |
Morgan Foods,
Inc. |
90 West
Morgan Street |
Austin, IN
47102 |
5.
Additionally
for violations found March 19, 2018, Respondent waives issuance of a Notice of
Violation and to the settlement period of sixty (60) days as provided for by IC
13-30-3-3.
6.
Respondent
is authorized by Rule 6 NPDES Permit Number INRM00877 (the Permit) to discharge
storm water exposed to industrial activities in accordance with the terms and
conditions of the Permit and the requirements under 327 IAC 15-6 into Stink
Ditch Creek via Outfall 003. The Permit will expire on June 24, 2019 and must
be renewed 90 days prior to expiration.
7.
Respondent
is authorized by National Pollutant Discharge Elimination System (NPDES) Permit
Number IN0021911 (NPDES Permit) to discharge wastewater treated in accordance
with the terms and conditions of the NPDES Permit from its WWTP into an unnamed
tributary of the Muskatatuck River via Outfall 001.
8.
Pursuant
to 327 Indiana Administrative Code (IAC) 5-2-8(1) Respondent shall comply with
all terms and conditions of the Permit and NPDES Permit (collectively the
Permits). Any permit noncompliance constitutes a violation of the Clean Water
Act and Indiana Code (IC) 13 and is grounds for enforcement action by IDEM.
9.
During
an investigation, including an inspection on March 13, 2015, February 25, 2016,
July 31, 2017, and November 29, 2017, conducted by a representative of IDEM,
violations were found, as described below.
10.
Pursuant
to 327 IAC 15-6-7.5, Respondent is required to submit an annual report to the
commissioner containing:
A.
Any
changes to the original NOI letter;
B.
Any
changes to the facility, the facility's operations or industrial activities;
C.
During
the second through fifth years of permit coverage, a copy of the comparison of
all sampling data results included in the facility's SWP3 and required under section
7(b)(9) of this rule; and
D.
Any
additional BMPs implemented, or corrective measures taken, as a result of
sampling data results, as required by IAC 15-6-7.3.
During
a review conducted by IDEM, it was determined that Respondent failed to submit
the Year 3 annual report, required prior to June 24, 2017, in violation of IAC
15-6-7.5.
During
a review conducted by IDEM, it was determined that Respondent submitted the
Year 4 annual report prior to the June 24, 2018 due date.
On
September 17, 2018, Respondent submitted an additional annual report. This
additional submission is reflected as the missed Year 3 annual report.
11.
Pursuant
to 327 IAC 15-6-7.3(b)(4) a permittee regulated under 327 IAC 15-6 shall submit
sampling results within 30 days after laboratory analyses have been completed.
During
a review conducted by IDEM, it was determined that Respondent failed to submit
the Year 3 (June 25, 2016, to June 24, 2017) sampling data, in violation of IAC
15-6-7.3.
12.
Pursuant
to IC 13-18-4-5, Respondent may not throw, run, drain, or otherwise dispose
into any of the streams or waters of Indiana any organic or inorganic matter
that causes or contributes to a polluted condition of any streams or waters of
Indiana.
Pursuant
to 327 IAC 2-1-6, all surface waters at all times and at all places, including
waters within 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.
Will
settle to form putrescent or otherwise objectionable deposits;
B.
Are
in amounts sufficient to be unsightly or deleterious;
C.
Produce:
i.
color;
ii.
visible
oil sheen;
iii.
odor;
or
iv.
other
conditions in such degree as to create a nuisance.
As
noted during an inspection on July 31, 2017, it was determined that on July 28,
2017, and July 31, 2017, an objectionable substance, which caused a visible sheen,
discolored water, and noxious odor, was released out of Outfall 003 into Stink
Ditch Creek, in violation of IC 13-18-4-5 and 327 IAC 2-1-6.
As
noted during inspections on November 29, 2017, and December 6, 2017, it was
determined that on November 29, 2017, an objectionable substance was released
out of Outfall 003 into Stink Ditch Creek, in violation of IC 13-18-4-5 and 327
IAC 2-1-6.
13.
Pursuant
to 327 IAC 2-6.1-7, Respondent shall, upon discovery of a reportable spill to
the soil or surface waters of the state, within two (2) hours of discovery,
communicate a spill report to IDEM, Office of Land Quality, Emergency Response
Section.
As
noted during an inspection on July 31, 2017, it was determined that Respondent
did not report the release of an objectionable substance, which caused a
visible sheen, discolored water, and noxious odor, out of Outfall 003 on July
28, 2017, and 31, 2017, in a timely manner or to the correct institution, in
violation of 327 IAC 2-6.1-7.
On
November 29, 2017, it was determined that Respondent did report the discharge
of the objectionable substance out of Outfall 003 on November 29, 2017, in
compliance with 327 IAC 2-6.1-7.
14.
Pursuant
to IC 13-18-11-11 and 327 IAC 5-22, the permittee shall have the wastewater
treatment facilities under the responsible charge of an operator certified by
the Commissioner in a classification corresponding to the classification of the
wastewater treatment plant.
As noted
during an inspection on July 31, 2017, it was determined that from March 2017
to October 2017 the certified operator overseeing the WWTP did not have the
proper certification, in violation of IC 13-18-11-11 and 327 IAC 5-22.
15.
Pursuant
to Part I.A.1 of the NPDES Permit, Respondent is required to comply with the
monitoring requirements contained in the NPDES Permit, including effluent
limitations and effluent monitoring frequencies.
As
noted during an inspection on July 31, 2017, it was determined that seven (7)
NPDES Permit effluent limit violations for ammonia nitrogen occurred between
February 2015 and January 2016, in violation of Part I.A.1 of the NPDES Permit.
16.
Pursuant
to 327 IAC 5-2-8(9), and Part II.B.1 of the Permit, the permittee is required
to maintain in good working order and efficiently operate all facilities and systems
(and related appurtenances) for collection and treatment that are:
A.
Installed
or used by the permittee; and
B.
Necessary
for achieving compliance with the terms and conditions of the permit.
Pursuant
to Part II.B.4 of the NPDES Permit, solids, sludges, filter backwash, or other
pollutants removed from or resulting from treatment or control of wastewaters
shall be disposed of in a manner such as to prevent any pollutant from such
materials from entering waters of the State and to be in compliance with all
Indiana statutes and regulations relative to liquid and/or solid waste
disposal.
As
noted during an inspection on March 13, 2015 and February 25, 2016, the WWTP
mixers and aerators were out of service. Additionally, the facility was
bypassing from the large lagoon and there was bulking sludge and vegetation
noted in the clarifiers. The facility was also found to be operating at 130%
over the plants design capacity. During a July 31, 2017 inspection, IDEM noted
a large amount of the material was still awaiting removal and the vegetation
was still present, in violation of 327 IAC 5-2-8(9) and Part II.B.4 of the
NPDES Permit.
17.
On
January 29, 2018, January 22, 2018, December 27, 2017, December 6, 2017, August
8, 2017, March 4, 2016, March 18, 2015, March 17, 2015, and January 21, 2014
IDEM sent Inspection Summary Letters to Respondent outlining violations at the
WWTP and other Permit violations. The letters required a response detailing
actions taken to correct the violations. IDEM received responses to the
letter(s) explaining compliance actions Respondent took or would take to
address the violations. However, the many of the violations noted at the Site
continue or have yet to be fully addressed.
18.
Subsequently, during an inspection, prompted by
a complaint, on March 19, 2018, conducted by a representative of IDEM,
violations were found, as described below.
A.
Pursuant
to Part II.B.1 of the Permit, the permittee is required to maintain in good
working order and efficiently operate all facilities and systems (and related
appurtenances) for collection and treatment that are:
i.
Installed
or used by the permittee; and
ii.
Necessary
for achieving compliance with the terms and conditions of the permit.
Pursuant
to 327 IAC 5-2-2, any discharge of pollutants into waters of the state as a
point source discharge is prohibited unless in conformity with a valid NPDES
permit obtained prior to the discharge.
As
noted during an inspection on March 19, 2018, the lift station constructed to
pump excess wastewater from the lagoon to the City of Austin Publicly Owned
Treatment Works (POTW) had failed, allowing untreated wastewater from the
lagoon to overflow from the spillway and drain directly into a tributary of the
Muscatatuck River, in violations of Part II.B.1 of the Permit and 327 IAC
5-2-2.
19.
On March
28, 2018, IDEM sent Inspection Summary Letter to Respondent outlining
violations at the WWTP and other Permit violations. The letter did not require
a response.
20.
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 adopted by
Complainant or Complainant’s delegate (as evidenced by signature), and the
adopted Agreed Order has been received by Respondent. This Agreed Order shall
have no force or effect until the Effective Date. In addition to addressing the
violations cited in Paragraphs 10 through 18 of the Findings of Fact above,
this Agreed Order also addresses any additional violations of these same rules
that may have occurred subsequent to the issuance of the NOV and prior to the
Effective Date.
2.
Respondent
shall comply with all rules, statutes, and permit conditions listed above.
3.
Respondent
shall continue to administer implementation of the Permit, INRM00877, in
accordance with 327 IAC 15-6.
4.
All
submittals required by this Agreed Order, unless Respondent is notified
otherwise in writing by IDEM, shall be sent to:
Olivia
Kuss, Enforcement Case Manager |
Office
of Water Quality – IGCN 1255 |
Indiana
Department of Environmental Management |
100
North Senate Avenue |
Indianapolis,
IN 46204-2251 |
5.
Respondent
is assessed and agree to pay a civil penalty of Forty Eight Thousand Four
Hundred Dollars ($48,400). Said penalty amount shall be due and payable to the
Environmental Management Special Fund within 30 days of the Effective Date; the
30th day being a “Due Date.”
6.
In
the event the terms and conditions of the following paragraphs are violated,
IDEM may assess and Respondent shall pay the corresponding stipulated penalty:
Paragraph |
Violation |
Stipulated Penalty |
3 |
Failure
to administer implementation of the Permit, INRM00877 |
$250
per violation. |
7.
Stipulated
penalties shall be due and payable no
later than the 30th day after Respondent receives written
notice that IDEM has determined a stipulated penalty is due, the 30th day being a “Due Date.”
IDEM may notify Respondent at any time that a stipulated penalty is due.
Failure to notify Respondent in writing in a timely manner of a stipulated
penalty assessment shall not waive IDEM’s right to collect such stipulated
penalty or preclude IDEM from seeking additional relief against Respondent for
violation of this Agreed Order. Neither assessment nor payment of stipulated penalties
shall preclude IDEM from
seeking additional relief against Respondent for a violation of this Agreed Order. Such additional relief includes any remedies or sanctions available
pursuant to Indiana law,
including, but not limited to, civil penalties pursuant to IC 13-30-4.
8.
Civil
and stipulated penalties are payable by check to the “Environmental Management
Special Fund.” Checks shall include the Case Number 2017-24774-W of this action
and shall be mailed to:
Office
of Legal Counsel |
Indiana
Department of Environmental Management |
IGCN,
Room N1307 |
100
North Senate Avenue |
Indianapolis,
IN 46204 |
9.
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.
10.
In
the event that the monies due to IDEM pursuant to this Agreed Order are not
paid on or before their Due Date, Respondent shall pay interest on the unpaid
balance and any accrued interest at the rate established by IC 24-4.6-1. The
interest shall be computed as having accrued from the Due Date until the date
that Respondent pays any unpaid balance. The interest shall continue to accrue
on the first of each month until the civil penalty and any interest accrued are
paid in full. Such interest shall be payable to the Environmental Management
Special Fund, and shall be payable to IDEM in the manner specified above.
11.
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.
12.
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.
13.
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.
14.
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.
15.
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.
16.
Nothing
in this Agreed Order shall prevent IDEM [or anyone acting on its behalf] from
communicating with the United States Environmental Protection Agency (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
EPA or any other agency or entity.
17.
This
Agreed Order shall remain in effect until Respondent has complied with all
terms and conditions of this Agreed Order and IDEM issues a Resolution of Case
(close out) letter to Respondent.
TECHNICAL
RECOMMENDATION: |
RESPONDENT: |
Department
of Environmental Management |
Morgan Foods, Inc. |
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By:__________________________ |
By:________________________ |
Samantha K.
Groce, Chief |
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Water
Enforcement Section |
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Surface Water, Operations & |
Printed:_____________________ |
Enforcement Branch |
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Office of Water Quality |
Title:_______________________ |
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Date:________________________ |
Date:_______________________ |
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COUNSEL
FOR RESPONDENT: |
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By:________________________ |
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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 October 26, 2018 |
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Martha
Clark Mettler |
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Assistant
Commissioner |
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Office
of Water Quality |