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STATE OF
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BEFORE THE
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COUNTY OF
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ENVIRONMENTAL
MANAGEMENT |
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COMMISSIONER
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OF
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Complainant, |
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v. |
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Case No. 2019-26034-S |
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City of Scottsburg |
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mARK & pAUL e. tHOMAS, |
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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 IC 13-13-1-1.
2.
Respondents, Mark and Paul E. Thomas, own the
property located on West Fairground Road with parcel number 72-05-30-400-053.000-008
in Scottsburg, Scott County, Indiana (the "Site").
Respondent, the City of Scottsburg, owns
and operates a Water Treatment Plant with National Pollutant Discharge
Elimination System (“NPDES”) Permit No. IN0059056 located at 631 West Lake Road
West, Scottsburg, Scott County, Indiana.
3.
IDEM has jurisdiction over the parties and the
subject matter of this action.
4.
Pursuant to IC 13-30-3-3, IDEM issued a Notice
of Violation (“NOV”) via Certified Mail to:
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The
Honorable William Graham, Mayor |
Mark
and Paul E. Thomas |
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City
of Scottsburg |
P.O.
Box 189 |
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2
East McClain Avenue |
Scottsburg,
Indiana 47170 |
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Scottsburg,
Indiana 47170 |
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5.
During an investigation including inspections
on February 5, 2019, January 8, 2019, and December 10, 2018, conducted by
representatives of IDEM, the following violations were found:
a. Pursuant to IC 13-30-2-1(4), no person shall deposit or cause or allow the
deposit of contaminants or solid waste upon the land, except through the use of
sanitary landfills, incineration, composting, garbage grinding, or another
method acceptable to the board.
As
noted during the inspections, Respondents caused and/or allowed filter backwash
sludge, a solid waste, which originated from the Scottsburg Water Treatment
Plant, to be deposited upon the land at the Site in a method which has not been
determined by the board to be acceptable. Records obtained for August 7, 2018
to August 13, 2018, indicate that approximately two hundred and thirty two
(232) half capacity truck loads of filter backwash
sludge, a solid waste, were received at the Site.
b. Pursuant to
329 Indiana Administrative Code (“IAC”) 10-4-2, no person shall cause or allow
the storage, containment, processing, or disposal of solid waste in a manner
which creates a threat to human health or the environment, including the
creating of a fire hazard, vector attraction, air or water pollution, or other
contamination.
As noted
during the inspections, Respondents caused and/or allowed filter backwash
sludge, a solid waste, which originated from the Scottsburg Water Treatment
Plant, to be stored and/or disposed at the Site in a
manner which creates a threat to human health or the environment. Records
obtained for August 7, 2018 to August 13, 2018, indicate that approximately two
hundred and thirty two (232) half capacity truck loads
of filter backwash sludge, a solid waste, were received at the Site.
c. Pursuant to
329 IAC 10-4-3, open dumping and open dumps, as those terms are defined in IC
13-11-2-146 and IC 13-11-2-147, are prohibited.
As
noted during the inspections, Respondents caused and/or allowed filter backwash
sludge, a solid waste, which originated from the Scottsburg Water Treatment
Plant, to be open dumped at the Site. Records
obtained for August 7, 2018 to August 13, 2018, indicate that approximately two
hundred and thirty two (232) half capacity truck loads
of filter backwash sludge, a solid waste, were received at the Site.
d. Pursuant to NPDES Permit No. IN0059056,
Part II.B.4, solids, sludges, filter backwash, or
other pollutants removed from or resulting from treatment or control of
wastewaters shall be disposed of in a manner such as to prevent any pollutant
from such materials from entering waters of the State and to be in compliance
with all Indiana statutes and regulations relative to liquid and/or solid waste
disposal. The discharge of pollutants in treated wastewater is allowed in
compliance with the applicable effluent limitations in Part I. of this permit.
As
noted during the inspections, Respondent, City of Scottsburg, caused and/or
allowed filter backwash sludge, a solid waste, which originated
from the Scottsburg Water Treatment Plant, to be open
dumped at the Site. Records obtained for August 7, 2018 to August 13,
2018, indicate that approximately two hundred and thirty two (232) half
capacity truck loads of filter backwash sludge, a
solid waste, were received at the Site.
e. Pursuant to 329 IAC 10-4-4, the owner of
real estate upon which an open dump is located is responsible for the
following:
1.
Correcting and controlling any nuisance
conditions that occur as a result of the open dump.
2.
Eliminating any threat to human health or the
environment.
As
noted during the inspections, Respondents, Mark and Paul E. Thomas, own real
estate upon which an open dump is located and have not corrected and controlled
any nuisance conditions and eliminated any threat to human health or the
environment.
6. 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, Respondents
acknowledge notice of this right and 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 approved by Complainant or Complainant’s
delegate, and has been received by Respondent. This Agreed Order shall have no
force or effect until the Effective Date.
2.
Respondents shall comply with the statutes,
rules, and/or permit conditions listed in the findings above.
3.
Upon the Effective Date, Respondents Mark and Paul E. Thomas shall cease accepting filter
backwash sludge, a solid waste, at the Site from the City of Scottsburg Water
Treatment Plant.
4. Within thirty (30)
days of the Effective Date, Respondents shall perform soil sampling on the
impacted area, observed during the January 8, 2019 inspection. Respondents shall, at a minimum, collect
three (3) grab samples. The samples shall be tested for Resource Conservation
and Recovery Act (“RCRA”) total metals and pH.
5. Within seventy-five (75) days of the
Effective Date, Respondents shall submit analytical results to IDEM for
review. Based on the analytical results,
and with concurrence from IDEM Office of Land Quality, Respondents shall
either:
a. Move the filter backwash sludge to an upland area
(note: this option is only available to Respondents if they first obtain approval
of the proposed relocation from the IDEM Office of Water Quality); or
b. Remove and properly dispose of the filter
backwash sludge at an approved disposal facility that is appropriate to the
character of the waste.
6.
Within thirty (30) days of receiving approval
from the IDEM Office of Land Quality per Order paragraph 5 (option a or b), Respondents shall implement the approved work.
7.
Beginning the month Respondents start to
implement the approved work, and continuing every month until the approved work
is complete, Respondents shall submit to IDEM a status report including any
appropriate documentation of the work performed; the 30th day of
each month being the “Due Date.”
8.
Upon the Effective Date, Respondents shall not dispose of solid waste without complying with the
requirements of 329 IAC 10-4-2 and 329 IAC 10-4-3.
9.
All submittals required by this Agreed Order,
unless Respondents are notified otherwise in writing by IDEM, shall be sent to:
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Idelia Walker-Glover, Enforcement Case
Manager |
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Office of Land Quality |
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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 |
10.
Respondents are assessed and agree to pay a
civil penalty of Three Thousand Four Hundred Dollars ($3,400). Respondents are
jointly and severally liable for all civil penalty assessments. Said penalty
amount shall be due and payable to the Environmental Management Special Fund
within thirty (30) days of the Effective Date; the 30th day being
the “Due Date.”
11.
In the event the terms and conditions of the
following paragraphs are violated, Complainant may assess and Respondents shall
pay a stipulated penalty in the following amount:
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Paragraph |
Penalty |
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Order
paragraph 4 |
$100 per
week late |
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Order
paragraph 5(a) or (b) |
$100 per
week late |
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Order
paragraph 6 |
$100 per
week late |
12.
Stipulated penalties shall be due and payable
no later than the 30th day after Respondent receives written notice
that Complainant has determined a stipulated penalty is due; the 30th
day being the “Due Date.” Complainant may notify Respondents at any time that a
stipulated penalty is due. Failure to
notify Respondents in writing in a timely manner of stipulated penalty
assessment shall not waive Complainant’s right to collect such stipulated
penalty or preclude Complainant from seeking additional relief against
Respondents for violation of this Agreed Order. Neither assessment nor payment
of stipulated penalties shall preclude Complainant 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.
13.
Civil and stipulated penalties are payable by
check to the “Environmental Management Special Fund.” Checks shall include the
Case Number 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
North Senate Avenue |
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Indianapolis, IN 46204 |
14.
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 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. Such interest shall be
payable to the “Environmental Management Special Fund,” and shall be payable to
IDEM in the manner specified in Paragraph 13, above.
15.
Signatories to this Agreed Order certify that
they are fully authorized to execute this Agreed Order and legally bind the
party they represent.
16.
This Agreed Order shall apply to and be binding
upon Respondents and all successors
and assigns. Respondents shall provide a copy of this Agreed Order, if in
force, to any subsequent owners, successors, or assigns before ownership rights
are transferred.
17.
No change in ownership, corporate, or
partnership status of Respondents shall in any way alter the Respondents’
status or responsibilities under this Agreed Order.
18.
Respondents shall ensure that all contractors,
firms, and other persons performing work under this Agreed Order comply with
the terms of this Agreed Order.
19.
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.
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 Respondents
pursuant to this Agreed Order, shall not in any way relieve Respondents of the
obligation to comply with the requirements of any applicable permits or any
applicable Federal or State laws or regulations.
21.
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.
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 violations
specified in the NOV.
23.
Nothing in this Agreed Order shall prevent IDEM
or anyone acting on its behalf from communicating with the U.S. Environmental
Protection Agency (U.S. 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 the U.S. EPA or any other agency or entity.
24.
This Agreed Order shall remain in effect until
IDEM issues a Resolution of Case letter to Respondents.
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TECHNICAL RECOMMENDATION: |
RESPONDENT: |
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Department of Environmental Management |
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By: _________________________ |
By:
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Linda L.
McClure, Section Chief |
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Enforcement
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Office of
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Title: ________________________ |
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Date: __________________ |
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RESPONDENT: |
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By:
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Printed: ______________________ |
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Title: ________________________ |
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RESPONDENT: |
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By:
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Printed: ______________________ |
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Title: ________________________ |
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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
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For the Commissioner: |
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Signed January 10, 2020 |
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Peggy Dorsey, Assistant Commissioner |
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Office of Land Quality |
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