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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. 2017-24784-W |
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BOSTON
DEVELOPMENT GROUP, LLC |
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d/b/a
CLARKS LANDING, |
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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 Boston Development Group, LLC, d/b/a Clarks Landing, which operates a former
industrial facility, located at 1410 South Clark Street, in Clarksville, Clark
County, Indiana (the Site).
3.
Respondent
is authorized by its National Pollutant Discharge Elimination System (NPDES)
Permit No. IN0003638 (the Permit), to discharge storm water in accordance with
the terms and conditions of the NPDES Permit into the Falls of the Ohio River
from outfall 001.
4.
IDEM
has jurisdiction over the parties and the subject matter of this action
pursuant to IC 13-30-3.
5.
Pursuant
to IC 13-30-3-3, IDEM issued a Notice of Violation (NOV) via Certified
Mail/personal service on January 10, 2018 to:
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Mr. Sanjay
Patel |
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Boston
Development Group, LLC, |
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d/b/a
Clarks Landing |
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1410 South
Clark Street |
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Clarksville,
Indiana 47129 |
6.
During
an investigation, including inspections on May 3, 2017, and April 12, 2018,
conducted by a representative of IDEM, violations were found, as described
below.
7.
Pursuant
to 327 Indiana Administrative Code (IAC) 5-2-8(1) Respondent shall comply with
all terms and conditions of the Permit.
Any permit noncompliance constitutes a violation of the Clean Water Act
and IC 13 and is grounds for enforcement action by IDEM.
8.
Pursuant
to 327 IAC 5-2-8(8) and Part II.A.15 of the Permit, the permittee is required
to allow access for inspection of the facility, including monitoring equipment,
collection, treatment, and discharge facilities, and any records that must be
kept under the conditions of the Permit.
During
an inspection on May 3, 2017, there was limited or unsafe access to portions of
the facility. Inspection staff noted
that the area surrounding Outfall 001 was overgrown with weeds, vines, and
small trees limiting access to the outfall.
Additionally, the gate to access the outfall was difficult to open, in
violation of 327 IAC 5-2-8(8) and Part II.A.15 of the Permit. On April 12, 2018, an additional site
inspection was conducted whereby the above-referenced site conditions had been
corrected and were no longer in violation.
9.
Pursuant
to Part
I.C.7 of the Permit, the
permittee is required to retain, for a minimum of three years, all records and
information resulting from the monitoring activities required by the Permit,
including all records of analyses performed.
During an
inspection on May 3, 2017 and April 12, 2018, records/reports were unavailable
for review, in violation of Part I.C.7
of the Permit.
10. Pursuant to Part I.C.2 of the Permit, the permittee is
required to submit monitoring reports to IDEM on the 28th day of the
month following each completed monitoring period, specified as annually per the
Permit.
As part of
the inspection on May 3, 2017, a review of records was completed online through
the Public Portal Virtual File Cabinet. The facility reported on their monthly monitoring
reports (MMRs) for all of 2016 and 2017 that “no discharge” had occurred from
the facility during the entire years of 2016 and 2017, in violation of Part I.C.2 of the Permit.
11. Pursuant to Part I.D of the Permit, the
permittee is required, within twelve months of the effective date of the
permit, to implement non-numeric permit conditions for the entire site as it
relates to storm water associated with industrial activity.
To
date, no progress has been made in regard to these requirements in violation of
Part I.D of the Permit.
12. Pursuant
to Part I.E of the Permit, the permittee is required to revise and update the
current Storm Water Pollution Prevention Plan (SWPPP) for the facility.
On
August 3, 2018, a SWPPP was submitted to IDEM via electronic mail. The subsequent review of the SWPPP by IDEM
staff determined that the SWPPP was insufficient. The failure to hold a sufficient SWPPP is in
violation of Part I.E of the Permit.
13. Pursuant
to Part 1.A of the Permit, the permittee is required to estimate the flow from the facility
on an annual basis.
During
an inspection on May 3, 2017, the existing flow meter was documented as
non-operational and Respondent failed to explain how it estimated flow. In addition, annual monitoring samples must
be collected during a rainfall event meeting specific requirements. No rain gauge was reported on-site during the
inspection, nor could Respondent provide information needed to identify and
document a storm event and sampling time for samples. Additionally, Respondent did not explain how
it would determine and document qualifying storm events and sampling times
without an on-site rain gauge, in violation of Part I.A of the Permit. On August 31, 2018, Respondent representatives
reported that the rain gauge was calibrated and operational. By letter dated November 5, 2018, Respondent’s
counsel advised that the Respondent may alternatively rely on a nearby rain
gauge operated by the Louisville and Jefferson County Metropolitan Sewer
District.
The
Respondent shall monitor flow rate from the property once per year as stated in
the Permit. Respondent may use the
off-site rain gauge should the on-site rain gauge fail.
14. Pursuant
to Part II. A.1 of the Permit, the permittee is required to comply with its
terms and conditions.
On May
10, 2017 and April 30, 2018, IDEM sent an Inspection Summary Letter to
Respondent outlining violations at the Site. On June 13, 2017 and July
28, 2017, “No Response” letters were sent to Respondent restating the
violations cited in the May 10, 2017 letter.
The letters required a response detailing actions taken to correct the
violations. On August 3, 2018, IDEM received an email from Mr. James Wesp and
on November 5. 2018, IDEM received a letter from Respondent’s counsel, both of
which addressed the violations but failed to resolve all of the violations.
15.
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 8 through 14 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 327 IAC 5-2-8(8), Part II.A.15 of the Permit, Part I.C.7 of the Permit, Part I.C.2.7 of the Permit, Part I.D of the
Permit, and Part I.E of the Permit.
3.
Within 60 (sixty) days of
the Effective Date, Respondent shall develop and submit to IDEM for approval a
Compliance Plan (CP) which identifies actions that Respondent has taken and will
take to achieve and maintain compliance with its Permit, specifically including
the actions Respondent will take to:
A.
Achieve and maintain
compliance with all conditions of its NPDES Permit; and,
B.
Comply with reporting
requirements of the permit.
The
CP shall include an implementation and completion schedule, including specific
milestone dates contained therein. The
CP may alternatively provide a schedule for demonstrating that the property
qualifies for a “no exposure” exclusion and Notice of Termination of the Permit. Upon written notification from IDEM that the
CP has been approved, Respondent shall implement the approved CP in a manner
that meets the approved milestone dates.
4.
Respondent shall, after completion of the work
required pursuant to the approved CP from Paragraph 3 above, demonstrate six
(6) consecutive months of compliance (Compliance Demonstration) with the terms
and conditions of the Permit, specifically including compliance with allowing
inspectors access to all parts of the facility, maintaining site records
on-site, sampling and reporting requirements, developing and maintaining nonnumeric
permit conditions, and updating and revising a SWPPP approved by IDEM in
writing. During the Compliance
Demonstration, Respondent shall be subject to stipulated penalties, as
specified below, for violations of the terms and conditions of the Permit.
In
the event that violation(s) occur during the Compliance Demonstration, within
60 days of the violation, Respondent shall 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 terms and
conditions of the 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 seek civil enforcement
of this Order.
6.
Respondent, upon receipt of written
notification from IDEM, shall immediately implement the approved plan(s) 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(s),
will subject Respondent to stipulated penalties as described below. Following completion of the actions included
in the Additional Action Plan, the 6-month Compliance Demonstration, as
specified in Paragraph 4 above, will re-start, and Respondent shall be subject
to stipulated penalties, as specified below, for violations of the terms and
conditions of the Permit during this time period. Failure to achieve compliance at the conclusion
of work under an Additional Action Plan may subject Respondent to additional
enforcement action.
7.
Within 10 (ten) days of the completion of each
required milestone included in the CP or Additional Action Plan, Respondent
shall submit to IDEM a written progress report or notification of completion
for each milestone.
8.
All
submittals required by this Agreed Order, unless Respondent is notified
otherwise in writing by IDEM, shall be sent to:
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Patrick
Colcord, Enforcement Case Manager |
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Office
of Water Quality – IGCN 1255 |
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Indiana
Department of Environmental Management |
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100
North Senate Avenue |
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Indianapolis,
IN 46204-2251 |
9.
Respondent
is assessed and agrees to pay a civil penalty of Five Thousand Dollars ($5,000). 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.”
10.
In
the event the terms and conditions of the following paragraphs are violated,
IDEM may assess and Respondent shall pay the corresponding stipulated penalty:
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Paragraph |
Violation |
Stipulated Penalty |
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3, 5 |
Failure
to submit or modify the CP within the required time period. |
$500
per week late, or part thereof. |
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4, 6 |
For
violations of terms and conditions of the Permit during the Compliance Demonstration. |
$500
per violation |
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4, 6 |
Failure
to submit or modify the Additional Action Plan, if required, within the given
time period. |
$250
per week late, or part thereof. |
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6 |
Failure
to meet any milestone date set forth in the approved CP or Additional Action
Plan. |
$500
per week late, or part thereof. |
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7 |
Failure to submit to IDEM a written
report of progress or completion for each milestone date included in the CP
or Additional Action Plan within 10 days of completion of the requirements of
each milestone. |
$250
per violation |
11.
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.
12.
Civil
and stipulated penalties are payable by check to the “Environmental Management
Special Fund.” Checks shall include the
Case Number 2017-24784-W of this action and shall be mailed to:
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Office
of Legal Counsel |
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Indiana
Department of Environmental Management |
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IGCN,
Room N1307 |
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100
North Senate Avenue |
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Indianapolis,
IN 46204 |
13.
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.
14.
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.
15.
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.
16.
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.
17.
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.
18.
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.
19.
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.
20.
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.
21.
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.
22.
This
Agreed Order addresses all violations described in I. Findings of Fact.
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TECHNICAL RECOMMENDATION: |
RESPONDENT: |
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Department of Environmental Management |
Boston Development Group, LLC |
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By:__________________________ |
By:_________________________ |
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Samantha K.
Groce, Chief |
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Enforcement
Section |
Printed:______________________ |
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Surface
Water, Operations and |
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Enforcement
Branch |
Title:________________________ |
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Office
of Water Quality |
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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 April 24, 2019 |
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Martha
Clark Mettler |
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Assistant Commissioner |
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Office of Water Quality |