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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. 2018-25054-W |
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jEFFREY S.
JONES |
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AND |
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PENDRAGON
PROPERTIES, INC., |
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Respondents. |
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AGREED ORDER
Complainant and
Respondents 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. Respondents’ entry into this Agreed Order shall
not constitute a waiver of any defense, legal or equitable, which Respondents
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.
Jeffrey
S. Jones, Individual, and President and Registered Agent, Pendragon Properties,
Inc. (Respondents) own and/or operate Southview Terrace Apartments, which is
located at 3006 Ted Jones Road, Bedford, Lawrence County, Indiana (the Site).
3.
Respondents
do not have a National Pollutant Discharge Elimination System (NPDES) Permit. Sewage
at the Site is managed through two (2) privately owned lift stations. The lift
stations pump sewage from the Site to the City of Bedford’s sanitary sewer
system for treatment at the Bedford Wastewater Treatment Plant.
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 July 6, 2018, IDEM issued a Notice of Violation (NOV) via
Certified Mail/personal service to:
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Jeffrey S.
Jones |
Jeffrey S.
Jones, President, and |
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Southview
Terrace Apartments |
Registered
Agent |
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3929 W. Roll
Avenue |
Pendragon
Properties, Inc. |
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Bloomington,
IN 47403 |
3929 W. Roll
Avenue |
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Bloomington,
IN 47403 |
6.
Pursuant
to 327 Indiana Administrative Code (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 from IDEM prior to the discharge.
During
the inspection on November 6, 2017, IDEM staff observed and documented that an
unknown amount of untreated domestic wastewater was released from two (2) point
source discharges at the Site for an unknown amount of time. Also during this
inspection, IDEM staff discovered that Respondents allowed the discharges to be
released from the Site on or before June 29, 2017 and on October 19, 2017. The
discharges originated from Respondents’ two (2) lift stations (East lift
station and West lift station) at the Site. The discharge at the East lift
station pooled on the ground and flowed onto an adjacent property. The
discharge at the West lift station pooled on the ground and flowed off-site
into a ditch that flowed to a sink hole identified as Doghill/Donahue cave
system, which flows to the East Fork of the White River, all of which are
waters of the State. The discharges from the Site to waters of the State
occurred without a valid NPDES permit, in violation of 327 IAC 5-2-2.
7.
Pursuant to 327 IAC 2-1-6(a)(1), all surface
waters at all times and at all places, including 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 will settle to form
putrescent or otherwise objectionable deposits, that are in amounts sufficient
to be unsightly or deleterious, that produce color, odor or other conditions in
such degree as to create a nuisance, which are in amounts sufficient to be
acutely toxic to, or to otherwise severely injure or kill aquatic life, other
animals, plants, or humans.
Pursuant to Indiana Code (IC) 13-18-4-5,
a person may not: (1) throw, run, drain, or otherwise dispose; or (2) cause,
permit, or suffer to be thrown, run, drained, allowed to seep, or otherwise
disposed; into any of the streams or waters of Indiana any organic or inorganic
matter that causes or contributes to a polluted condition of any of the streams
or waters of Indiana.
Pursuant to IC 13-30-2-1(1), it is
unlawful for any person to discharge, emit, cause or allow any contaminant or
waste, including any noxious odor, either alone or in combination with contaminants
from other sources in the environment in any form that causes or would cause
pollution that violates or would violate rules, standards, or discharge or
emission requirements adopted by the appropriate board under the environmental
management laws.
On or before June 29, 2017, October 19,
2017, and November 6, 2017, IDEM observed and/or documented that the discharges
from the Site produced a
noxious odor and left residual liquid and solid waste to pool on the ground. The
East
lift station flowed onto the
adjacent property, and the West lift station flowed off-site into a ditch to the Doghill/Donahue cave system that flows
to the East Fork of the White River, identified as waters of the State.
Respondents caused or contributed to a polluted condition of waters of
the State, in violation
of 327 IAC 2-1-6(a)(1), IC
13-18-4-5 and IC 13-30-2-1(1).
8.
327 IAC 2-10-4(18) defines a “spill” as any
unexpected, unintended, abnormal or unapproved dumping, leakage, drainage,
seepage, discharge or other loss of petroleum, hazardous substances, extremely
hazardous substances or objectionable substances. The term does not include
releases to impermeable surfaces when the substance does not migrate off the
surface or penetrate the surface and enter the soil.
Pursuant to 327 IAC 2-6.1-5(4)(A)(iii),
spills from a facility to surface waters that include objectionable substances,
as defined in section 4(11) of this rule, must be reported.
Pursuant to 327 IAC 2-6.1-7(3), any
person who operates, controls or maintains any mode of transportation or
facility from which a spill occurs shall, upon discovery of a reportable spill
to the soil or surface waters of the State, do the following:
(1)
Contain the spill, if possible, to prevent
additional spilled material from entering waters of the State;
(2)
Undertake or cause others to undertake
activities needed to accomplish a spill response;
(3)
As soon as possible, but within two (2) hours
of discovery, communicate a spill reporting to IDEM, Office of Land Quality,
Emergency Response Section:
Toll free 1-888-233-7745 or outside
Indiana 317-233-7745;
(4)
Submit to IDEM, Office of Land Quality,
Emergency Response Section, a written copy of the spill report, if requested in
writing by IDEM;
(5)
Except from modes of transportation other than
pipelines, exercise due diligence and document attempts to notify the
following:
(A)
For spills to surface water that cause damage,
the nearest affected downstream user located within ten (10) miles of the spill
and in the State of Indiana; and
(B)
For spills to soil outside the Site boundary,
the affected property owner or occupant or occupants.
As
noted during the inspection on November 6, 2017, IDEM staff observed an
unpermitted release of an unknown amount of untreated wastewater from the Site,
and Respondents failed to contain the spill, undertake activities to accomplish
a spill response, and/or communicate a spill report to IDEM, in violation of
327 IAC 327
IAC 2-6.1-5(4)(A)(iii) and 327 IAC 2-6.1-7(3).
As
noted during an inspection on July 12, 2019, IDEM staff observed wastewater
solids and debris surrounding the lift stations remain at the Site. Respondents
failed to contain spills, undertake activities to accomplish spill responses,
and/or communicate spill reports to IDEM that have occurred subsequent to the
issuance of the Notice of Violation, therefore, Respondents remain in violation
of 327 IAC 327
IAC 2-6.1-5(4)(A)(iii) and 327 IAC 2-6.1-7(3).
9.
In
recognition of the settlement reached, Respondents 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 Respondents. This Agreed Order shall
have no force or effect until the Effective Date. In addition to addressing the
violations cited in Paragraphs 6 through 8 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.
Respondents
shall comply with the rules and statutes listed in the Findings of Fact above.
3.
Immediately,
upon the Effective Date, Respondents shall cease and desist any point source
discharges from the Site.
4.
Within 30 days of the Effective Date,
Respondents shall develop and submit to IDEM, a Spill Response Plan (SRP) to be used by
Respondents and their employees, upon
discovery of a reportable spill from the Site. The SRP will be used to contain a spill,
and conduct a spill response to prevent the Discharges from migrating off-site,
and to properly communicate the spill report to the City of
Bedford and to IDEM, as
required by 327 IAC 2-6.1-7.
Respondents
are required to have, at all times, copies of the SRP at the City of Bedford’s
Utilities Department, and in weather-protected boxes at each lift station at
the Site.
5.
Within 30 days of the Effective Date,
Respondents shall post, and maintain permanent signs at each lift station
that include emergency contact information, which are visible to all affected
parties at/or near the Site.
6.
Within 30 days of the
Effective Date, Respondent shall provide to IDEM copies of certifications
and/or agreements with the City of Bedford, which demonstrate that Respondents
have legal authorization to discharge to the City’s sanitary sewer system.
7.
Within
30 days of the Effective Date, Respondents shall develop and
submit a Compliance Plan (CP) to IDEM for approval. The CP shall include, but
is not limited to, the following actions Respondents will take to achieve and
maintain compliance with all applicable rules
and statutes:
A.
Install a remote alarm system to alert
Respondents when the lift stations malfunction;
B.
Install reliable back-up power to keep lift
stations in operation in the event of a power outage at the Site;
C.
Install commercial-grade fencing, at minimum
height of six (6) feet;
D.
Install lockable gates, in order to provide
adequate security around both lift stations;
E.
Install hinges and locks to secure the lift
station covers;
F.
Replace both lift stations’ electrical wiring,
and bring the breaker boxes up to city/local code to
prevent power outages, which will prevent sewage overflows;
G.
Develop and implement a regular monthly
inspection routine to assure preventative maintenance occurs at the Site;
H.
Keep a log and document problems found at
inspections, and immediately address them;
I.
Clean
up wastewater discharges and oil and grease in, and around, the lift stations,
on the adjacent property, and in the Doghill/Donahue cave system, and submit
documentation to IDEM upon completion of the cleanup;
J.
Obtain
all required permits, and/or easements; and
K.
Comply with all
applicable Federal, State, and/or local reporting requirements.
The CP shall include an implementation
and completion schedule, including specific milestone dates to achieve
compliance with the CP.
8. Respondents
shall, after completion of the work required pursuant to the approved CP from
Order Paragraph 7 above, demonstrate six (6)-consecutive months of compliance
(Compliance Demonstration) with the terms and conditions Federal, State and
local rules and statutes to prevent unpermitted discharges from lift stations
at the Site to waters of the State. During the Compliance Demonstration,
Respondents shall be subject to stipulated penalties, as specified below, for
violations of the terms and conditions Federal, State and local rules and
statutes.
9. In the event
that violations occur during the Compliance Demonstration, within 60 days of
the violation(s), Respondents shall develop and submit to IDEM, for its
approval, an Additional Action Plan, which identifies the additional actions
that Respondents will take to achieve and maintain compliance with all
applicable Federal, State and local rules and statutes. The Additional Action
Plan, if required, shall include an implementation and completion schedule,
including specific milestone dates.
10. The plans
required by Order Paragraphs 4, 7 and 9 above are subject to IDEM approval. In
the event IDEM determines that any plan submitted by Respondents is deficient
or otherwise unacceptable, Respondents shall revise and resubmit the plan to
IDEM in accordance with IDEM’s notices. After three (3) submissions of such
plan by Respondents, IDEM may seek civil enforcement of this Order.
11. Respondents,
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 Respondents to submit any plan by the specified date, or to meet any of the
milestones in the approved plan(s), will subject Respondents to stipulated
penalties as described below.
12. Following
completion of the actions included in the Additional Action Plan, the 6-month
Compliance Demonstration, as specified in Order Paragraph 8 above, will
re-start, and Respondents shall be subject to stipulated penalties, as
specified below, for violations of all applicable Federal, State and local
rules and statutes during this time period. Failure to achieve compliance at
the conclusion of work under an Additional Action Plan may subject Respondents
to additional enforcement action.
13. Within 10 days
of the completion of each required milestone included in the CP or Additional
Action Plan, Respondents shall submit to IDEM a written progress report or
notification of completion for each milestone.
14. Beginning on
the Effective Date and continuing until the successful completion of
implementation of the approved CP, as required by Order Paragraph 7 above,
Respondents shall, at all times, operate the existing lift stations as
efficiently and effectively as possible to prevent any discharge of pollutants into waters
of the State.
15. All submittals required by this Agreed
Order, unless Respondents are notified otherwise in writing by IDEM, shall be
sent to:
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Aletha
Lenahan, Enforcement Case Manager |
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Indiana
Department of Environmental Management |
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Office
of Water Quality – IGCN, Room 1255 |
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100
N. Senate Avenue |
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Indianapolis,
IN 46204-2251 |
16. Respondents are assessed and agree to
pay a civil penalty of Seventeen Thousand, Two Hundred Fifty Dollars ($17,250).
Respondents are jointly and severally liable for all civil penalty assessments,
including stipulated penalties. 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.”
17. In the event the terms and conditions of
the following paragraphs are violated, IDEM may assess and Respondents shall
pay the corresponding stipulated penalty:
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Paragraph |
Violation |
Stipulated Penalty |
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3 |
Failure to cease and desist any point source
discharges from the Site. |
$500
per violation |
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4 |
Failure
to develop the SRP, submit a copy of the SRP to IDEM the City of
Bedford, and/or keep copies of the SRP at the Site. |
$500
per week late, or part thereof |
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4 |
Failure
to timely report a spill to IDEM and/or the City of Bedford, as identified in
327 IAC 2-6.1-7. |
$500
per hour late, or part thereof |
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5 |
Failure
to post
permanent signs at each lift station. |
$500
per week late, or part thereof |
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6 |
Failure
to timely provide to IDEM copies of certifications and/or
agreements with the City of Bedford. |
$250
per week late, or part thereof |
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4, 7, 9 |
Failure
to submit or modify the SRP, CP and Additional Action Plan, if required,
within the given time period. |
$250
per week late, or part thereof |
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8 |
For
violations of terms and conditions of all applicable Federal, State and
local rules and statutes
during the Compliance Demonstration. |
$500
per violation |
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7, 9, 11 |
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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13 |
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 week late, or part thereof |
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14 |
Failure
to at all times operate the lift stations as efficiently and effectively as
possible. |
$500
per violation |
18. Stipulated penalties shall be due and
payable no later than the 30th
day after Respondents receive written notice that IDEM has determined a
stipulated penalty is due, the 30th
day being a “Due Date.” IDEM may notify Respondents at any time that a
stipulated penalty is due. Failure to notify Respondents 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 Respondents for violation of this Agreed Order. Neither assessment
nor payment of stipulated
penalties shall preclude IDEM
from seeking additional relief against Respondents 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.
19. Civil and stipulated penalties are
payable by check to the “Environmental Management Special Fund.” Checks shall
include the Case Number 2018-25054-W of this action and shall be mailed to:
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Indiana
Department of Environmental Management |
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Accounts
Receivable |
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IGCN,
Room 1340 |
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100
N. Senate Avenue |
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Indianapolis,
IN 46204 |
20. This Agreed Order shall apply to and be binding
upon Respondents and their successors and assigns. Respondents’ 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 Respondents shall in any way alter their
status or responsibilities under this Agreed Order.
21. In the event that the monies due to IDEM
pursuant to this Agreed Order are not paid on or before their Due Date,
Respondents 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 Respondents 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.
22. 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.
23. Respondents shall provide a copy of this
Agreed Order, if in force, to any subsequent owners or successors before
ownership rights are transferred.
Respondents shall ensure that
all contractors, firms and other persons performing work under this Agreed
Order comply with the terms of this Agreed Order.
24. 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
Respondents pursuant to this Agreed Order, shall not in any way relieve Respondents
of their obligation to comply with the requirements of their applicable permit
or any applicable Federal or State law or regulation.
25. 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 Respondents may incur as a result of
Respondents’ efforts to comply with this Agreed Order.
26. 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.
27. 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 Respondents may
incur as a result of such communications with EPA or any other agency or
entity.
28. This Agreed Order shall remain in effect
until Respondents have complied with all terms and conditions of this Agreed
Order and IDEM issues a Resolution of Case (close out) letter to Respondents.
REMAINDER OF
PAGE INTENTIONALLY LEFT BLANK.
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TECHNICAL RECOMMENDATION: |
RESPONDENTS: |
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Department of Environmental Management |
Jeffrey S. Jones and |
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Pendragon Properties, Inc. |
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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 RESPONDENTS: |
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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 15, 2019 |
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Martha
Clark Mettler |
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Assistant Commissioner |
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Office of Water Quality |