STATE OF INDIANA

COUNTY OF MARION

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BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v.

huber family restaurant, inc.,

Respondent.

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Case No. 2018-25862-W

 

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.             Huber Family Restaurant, Inc. (Respondent) owns and/or operates the facility, located at 2421 Engle Road, Borden, Clark County, Indiana (the Site).

 

3.             Respondent is authorized by National Pollutant Discharge Elimination System (NPDES) Permit Number IN0055794 (the Permit) to discharge wastewater treated in accordance with the terms and conditions of the NPDES Permit from the Wastewater Treatment Plant (WWTP) into an unnamed tributary to Thompson Creek, via Outfall 001 at the Site.

 

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:

 

Katie Huber, President

Huber Family Restaurant, Inc.

2421 Engle Road

Borden, Indiana

 

6.             During an investigation on October 30, 2018 conducted by a representative of IDEM, violations were found, as described below.

 

7.             327 Indiana Administrative Code (IAC) 5-2-8(1) states 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 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.

 

Pursuant to 327 IAC 2-1-6(a)(1) and Part 1.B.1 of the Permit, 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 do any of the following:

A.            will settle to form putrescent or otherwise objectionable deposits;

B.            are in amounts sufficient to be unsightly or deleterious;

C.            produce color, visible oil sheen, odor, or other conditions in such degree as to create a nuisance;

D.            are in concentrations or combinations that will cause or contribute to the growth of aquatic plants or algae to such degree as to create a nuisance, be unsightly, or otherwise impair the designated uses; and are in amounts sufficient to be acutely toxic to, or to otherwise severely injure or kill aquatic life, other animals, plants, or humans.

 

During the inspection on October 30, 2018, IDEM staff observed and documented that the discharge from the lagoon was black in color, contained a visible oil sheen, and was odorous. This caused the unnamed tributary to Thompson Creek and Thompson Creek to contain deposits, an oil sheen, scum, the waters were black in color, and the waters were odorous to such a degree as to create a nuisance, in violation of IC 13-18-4-5, IC 13-30-2-1(1), 327 IAC 2-1-6(a)(1), and Part 1.B.1 of the Permit.

 

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.

 

Discharge Monitoring Reports (DMRs) and Monthly Reports of Operation (MROs) submitted by Respondents  revealed violations of effluent limitations contained in Part I.A.1 of the Permit as follows:

1.             The daily maximum average concentration limitation for ammonia nitrogen was exceeded during June and August 2018.

2.             The daily maximum average loading limitation for ammonia nitrogen was exceeded during June and August 2018.

3.             The monthly average concentration limitation for ammonia nitrogen was exceeded during November 2017, June and August 2018.

4.             The monthly average loading limitation for ammonia nitrogen was exceeded during June 2018.

 

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

 

10.         Pursuant to 327 IAC 5-2-8(9) and Part II.B.1 of the Permit, 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.

 

During the inspection on October 30, 2018, the following deficiencies were identified:

1.             the aerator was not operational;

2.             the septic tank contained a thick layer of sludge; and,

3.             the effluent filter on the septic tank was clogged,

 

each in violation of 327 IAC 5-2-8(9) and Part II.B.1 of the Permit.

 

11.         Pursuant to 327 IAC 5-22-3(11), Responsible charge operator means the wastewater treatment certified operator who makes process control or system integrity decisions about the overall daily operation, maintenance, management, or supervision of a wastewater treatment plant necessary to meet the performance requirements and limits of the assigned permit and any applicable local ordinance or other regulatory requirements. The responsible charge operator must assure that written and electronic monitoring reports are prepared under his or her direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. The responsible charge operator certifies that, based on his or her inquiry of the persons who manage the system or those persons directly responsible for gathering the information, the information submitted is, to the best of the knowledge and belief of the responsible charge operator, true, accurate, and complete.

 

During the inspection on October 30, 2018, IDEM staff observed and documented inadequate on-site attendance by the certified operator, in violation of 327 IAC 5-22-3(11).

 

12.         Pursuant to Part I.C.5 of the Permit, for each measurement or sample taken pursuant to the requirements of this permit, the permittee shall maintain records of all monitoring information and monitoring activities, including:

a)    The date, exact place and time of sampling or measurement;

b)    The person(s) who performed the sampling or measurements;

c)    The date(s) and time(s) analyses were performed;

d)    The person(s) who performed the analyses;

e)    The analytical techniques or methods used; and

f)     The results of such measurements and analyses.

 

During the inspection on October 30, 2018, IDEM staff observed and documented all records of monitoring information did not include sample and analyses times, in violation of Part I.C.5 of the Permit.

 

13.         Pursuant to 327 IAC 5-2-22 and Part II.C.6 of the Permit, all reports required by permits and other information requested by the Commissioner shall be signed by a person described in 327 IAC 5-2-22(a), or by a duly authorized representative of that person, and must be certified as accurate.

 

During the inspection on October 30, 2018, IDEM staff observed and documented Respondent failed to have the DMRs and MMRs signed by a duly authorized person, in violation of 327 IAC 5-2-22 and Part II.C.6 of the Permit.

 

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 13 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.             Immediately upon the Effective Date, Respondent shall immediately cease and desist any release of discharge from the Site to waters of the State.

 

4.             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, specifically ammonia nitrogen;

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

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

D.            Evaluate and implement means to eliminate bypasses; and

E.            Comply with reporting requirements of the permit.

 

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

 

5.             Respondent shall, after completion of the work required pursuant to the approved CP from Paragraph 4 above, demonstrate 12 consecutive months of compliance (Compliance Demonstration) with the terms and conditions of the Permit.

 

6.             In the event that violation(s) occur during the Compliance Demonstration, within 30 days of the violation, Respondent shall develop and submit to IDEM, for approval, an Additional Action Plan (AAP) 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.

 

7.             The plans required by Order Paragraphs 4 and 6 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.

 

8.             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 AAP shall be incorporated into the Agreed Order and shall be deemed an enforceable part thereof.

 

Following completion of the actions included in the AAP, the 12 month Compliance Demonstration, as specified in Paragraph 5 above, will re-start. Failure to achieve compliance at the conclusion of work under an Additional Action Plan may subject Respondent to additional enforcement action.

 

9.             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.

 

10.         Beginning on the Effective Date and continuing until the successful completion of implementation of the approved CP as required by Paragraph 4 above, Respondent shall, at all times, operate its existing wastewater treatment plant as efficiently and effectively as possible.

 

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

 

Olivia Kuss, Enforcement Case Manager

Office of Water Quality – IGCN 1255

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

12.         Respondent is assessed and agrees to pay a civil penalty of One Thousand Three Hundred Forty Dollars ($1,340). 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.”

 

13.         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

4

Failure to submit the CP within the required time period.

$250 per week late, or part thereof.

5

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

$400 per violation

6

Failure to submit AAP

$500 per week late, or part thereof.

7

Failure to modify the CP and/or AAP, if required, within the given time period.

$500 per week late, or part thereof.

8

Failure to meet and/or implement any milestone date set forth in the approved CP or AAP.

$500 per week late, or part thereof.

9

Failure to submit to IDEM a written report of progress within 10 days of each calendar quarter.

$150 per week late, or part thereof.

10

Failure to operate the WWTP as efficiently and effectively as possible prior to Compliance Demonstration.

$200 per violation.

 

14.         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.

 

15.         Civil and stipulated penalties are payable by check to the “Environmental Management Special Fund.” Checks shall include the Case Number 2018-25862-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

 

16.         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.

 

17.         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.

 

18.         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.

 

19.         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.

 

20.         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.

 

21.         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.

 

22.         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.

 

23.         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.

 

24.         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.

 

REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.

 

TECHNICAL RECOMMENDATION:

Department of Environmental Management

RESPONDENT:

Huber Family 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 April 9, 2019

Martha Clark Mettler

Assistant Commissioner

Office of Water Quality