STATE OF INDIANA

)

SS:

BEFORE THE INDIANA DEPARTMENT OF

 

)

 

ENVIRONMENTAL MANAGEMENT

COUNTY OF MARION

)

 

 

 

COMMISSIONER OF THE DEPARTMENT

)

 

OF ENVIRONMENTAL MANAGEMENT,

)

 

)

Complainant,

)

 

)

v.

)

Case No. 2018-25288-W

 

)

 

NK Holdings LLC,

)

 

)

Respondent.

)

 

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 NK Holdings LLC (Respondent), which owns and/or operates the wastewater treatment plant (WWTP) at Oakridge Estates Mobile Home Park, located at 2950 West 1100 North, Decatur, Adams County, Indiana (the Site).

 

3.               Respondent is authorized by its National Pollutant Discharge Elimination System (NPDES) Permit No. IN0036901 (the Permit), to discharge wastewater treated in accordance with the terms and conditions of the NPDES Permit from its WWTP into Bulman Ditch via Outfall 001.

 

4.               Respondent owns a community public water system (PWS) with PWSID No. IN5201006, serving 50 persons. The PWS is located at the Site.

 

5.               IDEM has jurisdiction over the parties and the subject matter of this action pursuant to IC 13-30-3.

 

6.               Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation (NOV) via electronic mail to:

 

nickkos1@hotmail.com

 

7.               Pursuant to 327 Indiana Administrative Code (IAC) 5-2-8(1), the Permittee shall comply with all terms and conditions 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.               Respondent is currently under Agreed Order Case No. 2009-18418-W. To date, Respondent has failed to comply with the terms and conditions of the above noted case.

 

9.               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.

 

A review of Discharge Monitoring Reports (DMRs) and Monthly Report of Operations (MROs) submitted by Respondent for the period of January 2017 through December 2017, revealed violations of effluent limitations contained in Part I.A.1 of the Permit as follows:

A.              The monthly average limitation for total suspended solids (TSS) was exceeded January, October, and December of 2017.

B.              The weekly average limitation for TSS was exceeded January, May, October, November, and December of 2017.

C.              The daily maximum limitation for E. coli was exceeded April, May, July, and October of 2017.

D.              The daily maximum limitation for ammonia-nitrogen was exceeded September of 2017.

 

Respondent failed to comply with effluent limitations contained in the Permit; each in violation of Part I.A.1 of the Permit and 327 IAC 5-2-8(1).

 

10.           Pursuant to Part I.A.1[1] of the Permit, the Permittee is required to comply with the effluent flow measurement per 327 IAC 5-2-13. The flow meter(s) shall be calibrated at least once every twelve months.

 

Based on an inspection on February 23, 2018, IDEM staff observed and documented that Respondent last calibrated the flow meter in 2016; in violation of Part I.A.1[1] of the Permit.

 

11.           Pursuant to Part II.B.1.a of the Permit and 327 IAC 5-2-8(8), 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:

1)              installed or used by the permittee; and

2)              necessary for achieving compliance with the terms and conditions of the permit.

 

Based on an inspection on February 23, 2018, maintenance was rated as unsatisfactory. Respondent had excessive inflow and infiltration (I/I) in the collection system. The aeration header and diffusers were not properly working to provide adequate aeration; each in violation of Part II.B.1.a of the Permit.

 

12.           Pursuant to Part II.B.1.b of the Permit, the Permittee is required to operate the permitted facility in a manner which will minimize upsets and discharges of excessive pollutants, and to properly remove and dispose of excessive solids and sludge.

 

Based on an inspection on February 23, 2018, sludge disposal was rated as unsatisfactory. The sludge is improperly removed by allowing high hydraulic loads to wash out the solids from the aeration tank to the receiving stream. Respondent does not have an alarm system in place to alert operators of equipment failure; each in violation of Part II.B.1.b of the Permit.

 

13.           Pursuant to Part II.B.1.e of the Permit, there shall be an ongoing preventative maintenance program for the sanitary sewer system.

 

Based on an inspection on February 23, 2018, Respondent failed to develop and implement a preventative maintenance program for the sanitary sewer system; in violation of Part II.B.1.e of the Permit.

 

14.           Pursuant to 327 IAC 5-22-10, the owner or governing body of a WWTP shall be responsible for accomplishing the following:

a.               Provide adequate funding and oversight to ensure the proper:

                                               i.          operation;

                                              ii.          maintenance;

                                            iii.          management; and

                                            iv.          supervision;

of the designated facilities.

 

Based on an inspection on February 23, 2018, operation was rated as unsatisfactory due to inadequate funding for proper or essential operation of the Site. Respondent has not provided adequate funding to maintain the WWTP, collection system, contract operator, and items mentioned for repairs in the March 4, 2013 Compliance Plan; in violation of 327 IAC 5-22-10.

 

15.           Pursuant to Part I.A of the Permit, to assure compliance with permit terms and conditions, the Permittee is required to comply with the monitoring requirements contained in the Permit.

 

IDEM records indicate Respondent failed to collect samples for January, April, and May of 2018; each in violation of Part I.A of the Permit.

 

16.           Pursuant to Part I.B.3 of the Permit, the Permittee shall submit accurate monitoring reports to the IDEM containing results obtained during the previous monitoring period and shall be postmarked no later than the 28th day of the month following each completed monitoring period. These reports shall include, but not necessarily be limited to, the DMRs and the MROs.

 

IDEM records indicated Respondent failed to submit DMRs and MROs for January, April, and May of 2018; each in violation of Part I.B.3 of the Permit.

 

17.           Pursuant to Part II.A.14, the Permittee shall have the wastewater treatment facilities under the responsible charge of an operator certified by the Commissioner in classification corresponding to the classification of the WWTP as required by IC 13-18-11-11 and 327 IAC 5-22.

 

IDEM records indicate Respondent failed to appoint an operator certified by the Commissioner; in violation of Part II.A.14.

 

18.           Pursuant to 327 IAC 5-22-10(4), the Permittee shall notify IDEM when there is a change of the person serving as the certified operator in responsible charge of the wastewater treatment facility. The notification shall be made no later than 30 days after a change in the operator.

 

IDEM records indicate Respondent failed to submit written notice to the IDEM within 30 days after a change in the person serving as the certified operator in responsible charge, in violation of 327 IAC 5-22-10(4).

 

19.           Pursuant to IC 13-18-20.5-2(2), for public water systems, the annual operation fees for a community water system with four hundred (400) or fewer service connections, the annual operation fee is three hundred fifty dollars ($350).

 

Pursuant to IC 13-18-20.5-4, in addition to the penalties prescribed under:

(1) IC 13-30-4-1;

(2) IC 13-30-4-2; and

(3) IC 13-30-5-1;

if a person does not remit a public water system annual operation fee or installment of the fee under IC 13-16-2 to the department not later than sixty (60) days after the date the fee is assessed or not later than thirty (30) days after the date the installment is due, the person shall be assessed a delinquency charge equal to ten percent (10%) of the fee or ten percent (10%) of the installment, whichever applies.

 

A delinquency charge assessed under this section is due and payable not later than sixty (60) days after the date a fee is assessed or not later than thirty (30) days after the date an installment of the fee is due under IC 13-16-2.

 

Respondent failed to pay the PWS annual operation fee and associated late fees for 2015, 2016, 2017, and 2018. The invoices stated that IDEM may pursue enforcement action for non-payment of annual fees and any associated late fees. IDEM informed Respondent that the below fees were due and payable via electronic mail or an enforcement action will be taken. IDEM has sent Respondent eight letters, the most recent sent on June 4, 2018. IDEM did not receive a response regarding payment.

 

Description

Invoice Date

Invoice Amount

2015 Annual Invoice #198160

1/15/2015

$350.00

2015 Late Fee Invoice #211881

5/27/2015

$35.00

2016 Annual Invoice #218387

1/8/2016

$350.00

2016 Late Fee Invoice #230191

5/19/2016

$35.00

2017 Annual Invoice #238788

1/11/2017

$350.00

2017 Late Fee Invoice #250129

5/10/2017

$35.00

2018 Annual Invoice #256730

1/12/2018

$350.00

2018 Late Fee Invoice #270119

6/4/18

$35.00

TOTAL DUE

$1,540.00

 

20.           Pursuant to IC 13-18-20-8(8), for semipublic permits, the annual base fee per facility is:

(1) seven hundred fifty dollars ($750) for a major permit; and

(2) two hundred dollars ($200) for a minor permit;

plus the following annual discharge flow fee per facility:

Daily Average Actual

Flow in MGD                                    Fee

001 - .05                                          $150

051 - .1                                            $300

101 - .2                                           $1,000

201 - .3                                              $2,000

301 - .5                                              $2,500

501 - 1.0                                         $3,000

1.001 -2.0                                        $3,500

2.001 - 5.0                                        $4,000

5.001 - 10.0                                      $5,000

10.001 - 15.0                                    $6,500

15.001 - 30.0                                    $7,500

30.01  - 50.0                                      $10,000

50.001 - 100.0                                  $11,000

 

Pursuant to IC 13-18-20-14(14), in addition to the penalties described under:

(1)  IC 13-30-4-1;

(2)  IC 13-30-4-2; and

(3)  IC 13-30-5-1;

if a person does not remit an annual NPDES fee or an installment established by the department under IC 13-16-2 to the department not more than sixty (60) days after the date the fee is assessed or not more than thirty (30) days after the date the installment is due, the person shall be assessed a delinquency charge equal to ten percent (10%) of the annual fee or ten percent (10%) of the installment, whichever is applicable.

 

A delinquency charge, if applicable, is due and payable sixty (60) days after the date an annual NPDES fee is assessed or thirty (30) days after the date the installment is due.

 

Respondent failed to pay the NPDES annual operation fee and associated late fees for 2016, 2017, and 2018. The invoices stated that IDEM may pursue enforcement action for non-payment of annual fees and any associated late fees. IDEM informed Respondent that the below fees were due and payable via electronic mail or an enforcement action will be taken. IDEM has sent Respondent six letters, the most recent sent on June 1, 2018. IDEM did not receive a response regarding payment.

 

Description

Invoice Date

Invoice Amount

2016 Annual Invoice #222357

1/8/2016

$315.00

2016 Late Fee Invoice #230272

5/17/2016

$35.00

2017 Annual Invoice #241248RB

1/31/2017

$350.00

2017 Late Fee Invoice #250144

5/9/2017

$35.00

2018 Annual Invoice #261545

1/12/2018

$350.00

2018 Late Fee Invoice #270146

6/1/2018

$35.00

TOTAL DUE

$1,120.00

 

21.           On March 25, 2019, the Respondent notified the enforcement case manager that it hired a Certified Operator.

 

22.           As of July 2019, the Respondent began submitting DMRs and MROs electronically using NetDMR and has submitted for each month thereafter.

 

23.           On August 30, 2019, IDEM conducted a Compliance Evaluation Inspection at the facility and identified a number of concerns with the facility.  An Inspection Letter/Noncompliance Letter was sent to the owner, Mr. Nik Kos, on September 15, 2019.  A response letter was received from Mr. Kos dated October 4, 2019.  Mr. Kos reported hiring a Certified Operator and began submitting self-monitoring reports.

 

24.           The Notice of Violation contained an offer to enter into an Agreed Order containing actions required to correct these violations.

 

25.           More than 60 days elapsed since Respondent was offered the opportunity to enter into an Agreed Order; therefore, on January 22, 2020, IDEM issued a Notice and Order of the Commissioner of the Indiana Department of Environmental Management (Commissioner’s Order) to Respondent.

 

26.           On February 11, 2020, Respondent filed a Petition for Administrative Review with the Office of Environmetal Adjudication seeking review of the Commissioner’s Order.

 

27.           IDEM and the Respondent have reached an agreement to resolve the pending administrative review.

 

28.           Orders of the Commissioner are subject to administrative review by the Office of Environmental Adjudication under IC 4-21.5; however, in recognition of the settlement reached, Respondent acknowledges notice of this right and 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 20 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 the rules and permit conditions listed in the findings above at issue.

 

3.               Within 30 days of the Effective Date, Respondent shall develop and submit to IDEM for approval a Compliance Plan (CP) which identifies actions that Respondent will take to achieve and maintain compliance with its Permit, specifically including the actions Respondent will take to:

A.              Achieve and maintain compliance with effluent limitations contained in the Permit.

B.              Develop and implement a preventative maintenance program for the sanitary sewer system, which includes methods and milestone dates for locating and eliminating sources of I/I as well as methods to manage solids and sludge in the sewer system.

C.              Comply with reporting requirements of the permit; and

 

The CP shall include an implementation and completion schedule, including specific milestone dates.

 

4.               Respondent shall, after completion of the work required pursuant to the approved CP from Paragraph 3 above, demonstrate twelve (12) consecutive months of compliance (Compliance Demonstration) with the terms and conditions of the Permit, specifically including compliance with effluent limitations and reporting requirements.  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, as indicated in IDEM’s approval letter, including and notification requirements deemed necessary by IDEM 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 12-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 days of each required milestone date included in the CP or AAP, Respondent shall submit to IDEM a written progress report or notification of completion for each milestone. Respondent shall submit to IDEM a written progress reports 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 Paragraph 3 above, Respondent shall, at all times, operate its existing wastewater treatment plant as efficiently and effectively as possible.

 

9.               Respondent must continue to accurately submit its DMRs and MROs electronically using the NetDMR live/production software, by the 28th day of the month following the monitoring period, in accordance with Part I.B.3 of the Permit.

 

10.           Within 30 days of the Effective date, Respondent shall submit any missing DMRs and MROs electronically using the NetDMR live/production software, in accordance with Part I. B. 3 of the Permit.

 

11.           Within 30 days of the Effective Date, Respondent shall submit the requested clarification documentation to IDEM regarding the certified operator who was hired on or around March 25, 2019.

 

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

 

Pat Colcord, Enforcement Case Manager

Office of Water Quality – IGCN 1255

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

13      Within 30 days of the Effective Date, Respondent shall submit payment for the fees stated in Finding of Facts, Paragraph 19 and 20. Said fees amount shall be due and payable within 30 days of the Effective Date, the 30th day being a “Due Date.”

 

Checks shall include the Case Number 2018-25288-D and Invoice Number, and shall be mailed to:

 

Indiana Department of Environmental Management

P.O. Box 3295

Indianapolis, Indiana 46206-3595

 

Payment online may be completed as follows:

        1.       www.in.gov/IDEM

        2.       Under “Online Services” [scroll towards the bottom of the page]

        3.       Select “Online Payment Options”

        4.       Select payment by “eCheck” or “Credit Card”

        5.       Under “Transaction Item”

        6.       Select “Invoice Payments” and follow the prompts

 

14.           Respondent is assessed and agrees to pay a civil penalty of Ten Thousand Nine Hundred Sixty Eight dollars ($10,968). Said penalty amount shall be paid in twelve (12) monthly payments. All payments shall be due and payable to the Environmental Management Special Fund. The first installment payment of Nine Hundred Fourteen dollars ($914) shall be due within 30 days of the Effective Date of this Agreed Order, the 30th day being the “Due Date”. Each of the remaining eleven (11) installment payments of Nine Hundred Fourteen dollars ($914) shall be due within 30 days of the preceding monthly due date, the 30th day being a “Due Date.” Interest shall accrue on any amount past due under this schedule or any outstanding amount that remains after the 12-month period at a rate established by IC 24-4.6-1-101. The interest shall continue to accrue until the civil penalty is paid in full.

 

15.           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, 5

Failure to submit or modify the CP within the required time period.

$500 per week late, or part thereof.

4, 6

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

$500 per violation

4, 5

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 implement or meet any milestone date, including notification requirements 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.

$250 per violation

8

Failure to operate the WWTP as efficiently and effectively as possible.

$500 per violation.

9

Failure to accurately submit reports via NetDMR by the 28th day of the month following the monitoring period.

$250 per week late, or part thereof.

10

Failure to accurately submit missing reports via NetDMR within 30 days of the effective date.

$250 per week late, or part thereof.

11

Failure to submit the clarification information regarding the notice of certified operator as required.

$300 per week, or part thereof.

 

16.           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.

 

17.           Civil and stipulated penalties are payable by check to the “Environmental Management Special Fund.” Checks shall include the Case Number 2018-25288-W of this action and shall be mailed to:

 

Indiana Department of Environmental Management

Accounts Receivable

IGCN, Room 1340

100 North Senate Avenue

 

18.           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.

 

19.           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.

 

20.           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.

 

21.           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.

 

22.           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.

 

23.           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.

 

24.           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.

 

25.           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.

 

26.           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

NK Holdings LLC

 

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 September 22, 2020

 

Martha Clark Mettler

 

Assistant Commissioner

 

Office of Water Quality