STATE OF INDIANA

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SS:

BEFORE THE INDIANA DEPARTMENT OF

 

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ENVIRONMENTAL MANAGEMENT

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.

 

By:__________________________

By:________________________

Samantha K. Groce, Chief

 

Water Enforcement Section

 

Surface Water, Operations &

Printed:_____________________

Enforcement Branch

 

Office of Water Quality

Title:_______________________

 

 

Date:________________________

Date:_______________________

 

 

COUNSEL FOR RESPONDENT:

 

 

 

By:________________________

 

 

 

Date:______________________

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS ___________ DAY OF ________________, 20___.

 

 

For The Commissioner:

 

 

Signed on October 26, 2018

 

Martha Clark Mettler

 

Assistant Commissioner

 

Office of Water Quality