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. 2018-24966-W

 

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Donald C. Strong, Owner,

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Bearcreek farms, and/or

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President, BEARCREEK FARMS, INC.,

)

 

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Respondents.

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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.             Respondents are Donald C. Strong, Owner, Bearcreek Farms, and/or President, Bearcreek Farms, Inc. (Respondents). Respondents own and operate the Bearcreek Farms Wastewater Treatment Plant (WWTP) that provides treatment for Bearcreek Farms Family Resort and Entertainment Complex, located at 8341 N 400 E, Bryant, Jay County, Indiana (the Site).

 

Subsequent to the issuance of the Notice of Violation (NOV) on April 12, 2018, IDEM was made aware that Bearcreek Farms Resort and Entertainment Complex was closed for business in 2013. However, the WWTP has remained in continuous use for collection and treatment of the wastewater from Richards Restaurant, Inc. commissary, which is located at the Site.

 

On May 17, 2018, IDEM confirmed that Richards Restaurant, Inc. is the sole owner and/or operator of Bearcreek Farms WWTP, and issued the National Pollutant Discharge Elimination System (NPDES) Permit, Number IN0050211 (the Permit) renewal to Richards Restaurant, Inc. Therefore, for this enforcement action, Richards Restaurant, Inc. is now named as sole Respondent and responsible party, and is hereafter referred to as “Respondent”.

 

3.             Respondent is authorized by the Permit to discharge 0.060 million gallons per day of wastewater, treated in accordance with the terms and conditions of the Permit from the WWTP into Bearcreek Ditch, identified as waters of the State, via 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, on April 12, 2018, IDEM issued the NOV via Certified Mail to:  Donald C. Strong, Owner, Bearcreek Farms, and/or President, Bearcreek Farms, Inc.

 

6.             During an investigation conducted by a representative of IDEM, violations were found at the Site, as described below.

 

7.             Pursuant to 327 Indiana Administrative Code (IAC) 5-2-8(1), the permittee shall comply with all terms and condition of the Permit. Any permit noncompliance constitutes a violation of the Clean Water Act and Indiana Code (IC) 13, and is grounds for enforcement action by IDEM.

 

8.             Pursuant to Part I.A.1 of the Permit, the permittee is required to comply with the monitoring requirements contained in the Permit, including effluent limitations.

 

Discharge Monitoring Reports (DMRs) and Monthly Reports of Operation (MROs) submitted by Respondent for the period of January 2015 through January 2018, and a subsequent DMR review by IDEM staff for the period of February 2018 to September 2018, indicates violations of effluent limitations contained in Part I.A.1 of the Permit as follows:

 

A.        The daily maximum average concentration limitation for total suspended solids (TSS) was exceeded during August 2015, October 2016 and May 2018.

B.        The monthly average concentration limitation for TSS was exceeded during August 2015, March 2016, and October 2016.

C.       The daily maximum average concentration limitation for Ammonia (as Nitrogen) was exceeded during June 2016.

D.       The monthly average concentration limitation for Ammonia (as nitrogen) was exceeded during February 2016 and June 2016.

E.        The monthly average concentration limitation for Phosphorus was exceeded during December 2015, January and February 2016, and June, July, August, September, October, and November 2017, and March, April, May and June 2018.

F.        The daily maximum concentration limitation for Escherichia coli (E. coli) was exceeded during April, May, July, August, and September 2015, April and May 2016, and October 2017.

G.       The monthly geometric mean limitation for E. coli was exceeded during April, May, August, and September 2015.

H.       The daily maximum average concentration limitation for the 5-day carbonaceous biological oxygen demand (CBOD5) was exceeded during September 2016.

I.          The monthly average concentration limitation for CBOD5 was exceeded during September 2016.

 

Respondent failed to comply with the effluent limitations from Outfall 001 contained in the Permit, in violation of Part I.A.1 of the Permit.

 

9.             Pursuant to Part II.B.1.b of the Permit, in accordance with 327 IAC 5-2-8(9), the permittee shall operate the permitted facility in a manner which will minimize upsets and discharges of excessive pollutants. The permittee shall properly remove and dispose of all excess sludge.

 

Pursuant to Part II.B.4 of the Permit, solids, sludge, filter backwash and 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.

 

During inspections conducted on June 8, 2015 and July 5, 2017, IDEM staff documented that Respondent failed to operate and maintain the WWTP in a manner that minimized upsets and discharges of excessive pollutants. Specifically, Respondent failed to regularly remove and dispose of excessive sludge from the WWTP, and from the lagoon, resulting in a high solids inventory throughout the WWTP, and at the time of the inspections, solids appeared to be filling up the lagoon. Respondent failed to remove the sludge that discharged from the WWTP to the lagoon, in violation of 327 IAC 5-2-8(9), Part II.B.1.b and Part II.B.4 of the Permit.

 

10.         On June 26, 2015, and July 10, 2017, IDEM sent Inspection Summary Letters to Respondent outlining violations at the WWTP. On August 26, 2014 and May 20, 2015, IDEM sent Violations Letters to Respondent for noncompliance with Part I.D of the Permit, which requires that the Permit holder to comply with all final requirements of Schedule of Compliance for Phosphorus. The letters required a response detailing actions taken to correct the violations. On August 23, 2017, IDEM issued a No Response letter for Respondent’s failure to submit a timely response to the July 10, 2017 Inspection Summary Letter. IDEM received responses to the above noted letters explaining compliance actions Respondent took or would take to address the violations. However, Respondent’s compliance actions were inadequate or did not occur, and therefore, the violations noted above continue at the WWTP.

 

11.         Subsequent to the issuance of the NOV, Respondent has developed a compliance plan (CP) for achieving continuous compliance with the Permit. The attached CP provides a schedule of completion for the following actions that Respondent is required to take to achieve and maintain compliance with the Permit:

 

A.            Assure proper removal, storage, and disposal of sludge solids;

B.            Repair and/or replace various portions of the sanitary sewer system in order to remove sources of inflow and infiltration (I/I);

C.            Implement a preventative maintenance program for WWTP equipment, and document all maintenance (preventative and repair) in a permanent record;

D.            Implement a preventative maintenance program for the sanitary sewer collection system, which includes methods and milestone dates for locating and eliminating sources of inflow and infiltration (I/I) in the sewer system;

E.            Comply with reporting requirements of the Permit;

F.            Maintain compliance with Phosphorus effluent limits contained in the Permit (necessary action may include, but not be limited to, construction of an additional unit to remove Phosphorus prior to wastewater discharge from the WWTP);

G.           Provide an adequate operating staff, which is duly qualified to carry out the operation, maintenance of the WWTP, and testing functions required to ensure compliance with the conditions of the Permit; and

H.            Provide adequate training specific to the WWTP employees’ job duties to ensure proper operation and maintenance of the WWTP and the sewer system, which utilizes BMPs in order to comply with the Permit, and all other applicable rules and statutes, and ensure training records are maintained at the Site. (Training is required to fulfill all certified operator continuing education requirements, and shall occur at minimum of once annually).

 

12.         In recognition of the settlement reached, Respondent waive 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 and 9 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 Notice of Violation, and prior to the Effective Date.

 

2.             Respondent shall comply with environmental rules, statutes, and permit conditions listed in the findings above at issue.

 

3.             The CP set forth in Attachment A, and outlined in Findings of Fact Paragraph 11, is hereby incorporated into this Agreed Order and deemed an enforceable part thereof. Respondent shall immediately implement the Compliance Plan, and adhere to the milestone dates contained therein.

 

Upon becoming aware that it may be unable to complete a project or task listed in the Compliance Plan by the milestone completion date specified therein, Respondent shall notify IDEM in writing. The written notification shall include the following:

 

A.        A description of the project/task and associated milestone completion date that Respondent anticipates an inability to meet;

B.        The reason(s) that Respondent anticipates that it will be unable to meet the milestone completion date; and

C.        The date by which the project/task will be completed.

 

Respondent may include in the written notification a request that the CP be modified to extend a milestone completion date, for a specified amount of time. The submittal of a written request for modification of the CP to extend a milestone completion date shall not affect the CP or prevent the accrual of stipulated penalties associated with the failure to meet the milestone completion date that is the subject of the written request. IDEM may deny the request through written correspondence or through a formal modification of the Agreed Order.

 

4.             Respondent shall, after completion of the work required pursuant to the approved CP in Attachment A, which is outlined in Findings of Fact Paragraph 11, demonstrate six (6) consecutive months of compliance (Compliance Demonstration) with the terms and conditions of the Permit, specifically including compliance with effluent limitations, monitoring and reporting requirements, and operation and maintenance. During the Compliance Demonstration, Respondent shall be subject to stipulated penalties, as specified below, for violations of this Order and 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 Additional Action Plan required by Order Paragraph 3 above is 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 (3) 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 CP and Additional Action Plan, the 6-month Compliance Demonstration, as specified in Order Paragraph 4, will restart, 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.             Beginning with the first calendar quarter following the Effective Date, Respondent shall submit to IDEM a written progress report within 10 days of the end of each calendar quarter, which identifies the compliance actions implemented during each quarter ending March 31st, June 30th, September 30th, and December 31st, until completion of the CP or Additional Action Plan.

 

8.             Beginning on the Effective Date and continuing until the successful completion of implementation of the approved CP, as required by Order Paragraph 3 above, Respondent shall, at all times, operate the existing WWTP, as efficiently and effectively as possible.

 

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

 

Aletha Lenahan, Enforcement Case Manager

Office of Water Quality – IGCN N1255

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

10.         Respondent is assessed and agree to pay a civil penalty of Five Thousand, Seven Hundred Twenty ($5,720). 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.”

 

11.         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 implement the CP within the required time period.

$500 per week late or part thereof.

3

Failure to notify IDEM upon becoming aware that it may be unable to complete work under the CP.

$250 per week late or part thereof.

4, 5

For violations of terms and conditions of the Permit during the Compliance Demonstration.

$500 per violation

4

Failure to submit or modify the Additional Action Plan, if required, within the given time period.

$250 per week late or part thereof.

6

Failure to meet any milestone date set forth in the approved CP or Additional Action Plan.

$500 per week late or part thereof.

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 the end of each calendar quarter.

$250 per week late or part thereof.

8

Failure to, at all times, operate the WWTP as efficiently and effectively as possible.

$250 per violation.

 

12.         Stipulated penalties shall be due and payable no later than the 30th day after Respondent receive 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.

 

13.         Civil and stipulated penalties are payable by check to the “Environmental Management Special Fund.” Checks shall include the Case Number

2018-24966-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

 

14.         This Agreed Order shall apply to and be binding upon Respondent and their 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.

 

15.         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 pay 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.

 

16.         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.

 

17.         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.

 

18.         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 their obligation to comply with the requirements of the applicable permit and/or any applicable Federal or State law or regulation.

 

19.         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.

 

20.         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.

 

21.         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.

 

22.         This Agreed Order shall remain in effect until Respondent have complied with all terms and conditions of this Agreed Order and IDEM issues a Resolution of Case (close out) letter to Respondent.

 

Remainder of this page intentionally left blank.

 

TECHNICAL RECOMMENDATION:

RESPONDENT:

Department of Environmental Management

Richards Restaurant, Inc.

 

By:________________________

By:_________________________

Samantha K. Groce, Chief

 

Water Enforcement Section

Printed:______________________

Surface Water, Operations &

 

Enforcement Branch

Title:________________________

Office of Water Quality

 

 

Date:________________________

Date:______________________

 

 

 

COUNSEL FOR RESPONDENT:

 

By:_________________________

 

Date:_______________________

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS ______ DAY OF ________________________, 201___

 

 

For the Commissioner:

 

Signed on December 19, 2018

Martha Clark Mettler

Assistant Commissioner

Office of Water Quality