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STATE
OF INDIANA |
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BEFORE
THE INDIANA DEPARTMENT |
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COMMISSIONER
OF THE DEPARTMENT Complainant, v. nugent sand company – utica facility, 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
owns/operates the facility, located at 5840 Utica Pike, Utica, Clark County,
Indiana (the Site).
3.
Respondent
is authorized by National Pollutant Discharge Elimination System (NPDES) Permit
Number IN0061549 (the Permit) to discharge wastewater treated in accordance
with the terms and conditions of the NPDES Permit from the Wastewater Treatment
Plant (WWTP) into the Ohio River, 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, IDEM issued a Notice of Violation (NOV) via Certified
Mail/personal service to:
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Tom Nugent,
President |
Robert Holt,
Director of Permitting |
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Nugent Sand
Company |
Nugent Sand
Company – Utica Facitlity |
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1833 River
Road |
1833 River
Road |
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P.O. Box 6072 |
Louisville,
Kentucky 40206 |
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Louisville,
Kentucky 40206 |
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6.
During
an investigation 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 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.6 of the Permit, the permittee shall post a permanent marker on the
stream bank at each outfall discharging directly to the Ohio River. The marker
shall consist at a minimum of the name of the establishment to which the permit
was issued, the permit number, and the outfall number. The information shall be
printed in letters not less than two inches in height. The marker shall be a
minimum of 2 feet by 2 feet and shall be a minimum of 3 feet above the ground.
Based
on an inspection on July 10, 2018, Respondent posted a marker on the bank next
to Outfall 001. However, the marker did not include the establishment to which
the permit was issued, the permit number, and the outfall number, in violation
of Part I.A.6 of the Permit.
9.
Pursuant to IC 13-18-11-14, it is unlawful for
any person, firm or corporation, both municipal and private, to operate a water
or wastewater treatment plant or a water distribution system unless the
operator in responsible charge is duly certified by the commissioner under the
provisions of this chapter. Furthermore,
it shall be unlawful for any person to perform the duties of an operator in
responsible charge of such works as defined herein without being duly certified
under the provisions of this chapter.
Pursuant to 327 IAC 5-22-10, the owner or
governing body of a wastewater treatment plant shall be responsible for placing
each wastewater treatment plant under the direct supervision of one certified
operator to be in responsible charge.
Based
on inspections on December 19, 2017 and July 10, 2018, Respondent failed to
place the WWTP under the direct supervision of one certified operator to be in
responsible charge, in violation of IC 13-18-11-14 and 327 IAC 5-22-10.
10.
Pursuant to 327 IAC 5-2-15(c),
all reports required by this section shall be prepared by or under the
direction of a certified WWTP operator or a certified water treatment plant
operator.
Respondent
failed to prepare reports under the direction of a certified WWTP operator or a
certified water treatment plant operator, in violation of 327 IAC 5-2-15(c).
11.
Pursuant to 327
IAC 5-2-8(9), the permittee shall at all times maintain in good working order
and efficiently operate all facilities and systems (and related appurtenances)
for collection and treatment that are:
A.
installed or used by the permittee; and
B.
necessary for achieving compliance
with the terms and conditions of the permit.
Based
on inspections on December 19, 2017 and July 10, 2018, maintenance was rated as
unsatisfactory due to the out of service salt pond pump, in violation of 327 IAC
5-2-8(9).
12.
Pursuant
to Part I.A.1 of the Permit, the permittee is required to comply with the
effluent limitations and monitoring requirements contained in the Permit.
Respondent
has reported “no discharge” on the Discharge Monitoring Reports (DMRs) for many
years. Based on inspections on December 19, 2017 and July 10, 2018, Respondent
discharges from Outfall 001 approximately two to four times a year. Respondent
failed to monitor the final effluent at the frequency required by the Permit,
in violation of Part I.A.1.
13.
On
December 21, 2017 and July 12, 2018, IDEM sent Inspection Summary Letter(s) to
Respondent outlining violations at the WWTP. The letters required a response
detailing actions taken to correct the violations. To date, IDEM has not
received a response to the above noted violation and noncompliance letters, and
the violations continue at the WWTP.
14.
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 12 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 rules and statutes listed in the findings above at issue.
3.
Within
15 days of the Effective Date, Respondent shall post a permanent marker on the
stream bank at Outfall 001. The marker shall consist at a minimum of the name
of the establishment to which the permit was issued, the permit number, and the
outfall number. The information shall be printed in letter not less than two
inches in height. The marker shall be a minimum of 2 feet by 2 feet and shall
be a minimum of 3 feet above the ground.
4.
Within
30 days of the Effective Date, Respondent shall comply with IC 13-18-11-14 and 327 IAC 5-22-14 by assuring that a duly
certified operator is in responsible charge of the WWTP.
5.
Beginning
immediately, Respondent shall comply with 327 IAC 5-2-15(c) by preparing
reports by or under the direction of a certified WWTP operator or a certified
water treatment plant operator.
6.
Beginning
immediately, Respondent shall monitor the final effluent at the frequency
required by the Permit.
7.
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 repair the
containment pond pump at the Site or have the containment pond removed from the
Permit.
The
CP shall include an implementation and completion schedule, including specific
milestone dates.
8.
The plan required by Order Paragraph 7 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
submissions of such plan by Respondent, IDEM may seek civil enforcement of this
Order.
9.
If Respondent fails to meet the milestone dates
included in the CP, Respondent shall submit an Additional Action Plan (AAP) to
IDEM within 10 days of a missed milestone date, which identifies the additional actions that Respondent
will take to achieve and maintain compliance with the terms and conditions of
the Permit.
The AAP, if required, shall include an implementation and completion schedule,
including specific milestone dates.
10.
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 or APP shall be
incorporated into the Agreed Order and shall be deemed an enforceable part
thereof.
11.
Within 10 days of the completion of each
required milestone included in the CP or AAP, Respondent shall submit to IDEM a
written progress report or notification of completion for each milestone.
12.
Beginning immediately and continuing until the
successful completion of implementation of the approved CP or APP, Respondent
shall, at all times, operate its existing wastewater treatment plant as
efficiently and effectively as possible.
13.
All
submittals required by this Agreed Order, unless Respondent is notified
otherwise in writing by IDEM, shall be sent to:
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Olivia
Kuss, 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 |
14.
Respondent
is assessed and agrees to pay a civil penalty of Four Thousand Two Hundred
Fifty Dollars ($4,250). 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.”
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:
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Paragraph |
Violation |
Stipulated Penalty |
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3 |
Failure
to post permanent marker per the Permit requirements, within the given time
period. |
$250
per week late, or part thereof |
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4 |
Failure
to appoint a duly certified operator, within the given time period. |
$500
per week late, or part thereof |
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5 |
Failure
to prepare reports by or under direction of duly certified operator. |
$250
per violation. |
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6 |
Failure
to monitor as required by the Permit. |
$250
per violation. |
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7, 8 |
Failure
to submit or modify the CP within the required time period. |
$400
per week late, or part thereof. |
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9 |
Failure
to submit or modify the AAP, if required, within the given time period. |
$250
per week late, or part thereof. |
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10 |
Failure
to implement and meet any milestone date set forth in the approved CP or AAP. |
$250
per week late, or part thereof |
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11 |
Failure
to submit written progress reports or notifications of completion. |
$250
per week late, or part thereof |
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12 |
Failure
to operate the WWTP as efficiently and effectively as possible. |
$250
per violation. |
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 2018-25635-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 |
18.
This
Agreed Order shall apply to and be binding upon Respondent, 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 permits or any applicable Federal or State law
or regulation.
23.
Complainant
does not, by his 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 Notice of Violation.
25.
Nothing
in this Agreed Order shall prevent IDEM (or anyone acting on its behalf) from
communicating with the United States Environmental Protection Agency (US 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
the US EPA or any other agency or entity.
26.
This
Agreed Order shall remain in effect until Respondent has complied with the
terms and conditions of this Agreed Order and IDEM issues a Resolution of Case
(close out) letter to Respondent.
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TECHNICAL
RECOMMENDATION: |
RESPONDENT: |
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Department
of Environmental Management |
Nugent Sand Company – Utica Facility |
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By:__________________________ |
By:________________________ |
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Samantha K.
Groce, Chief |
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Water
Enforcement Section |
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Surface Water, Operations & |
Printed:_____________________ |
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Enforcement Branch |
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Office of Water Quality |
Title:_______________________ |
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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 February 19 , 2019 |
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Martha
Clark Mettler |
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Assistant
Commissioner |
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Office
of Water Quality |