STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT
) SS: OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION )
COMMISSIONER OF THE DEPARTMENT )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
)
v. ) CAUSE NO. 1999-8755-W
)
LAZ I, INC. d/b/a )
McDonald’s Restaurant, )
)
Respondent. )
AGREED ORDER
The Complainant and the 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.
I. FINDINGS OF FACT
1. Complainant is the Commissioner (hereinafter referred to as "Complainant") of the Indiana Department of Environmental Management, a department of the State of Indiana created by IC 13-13-1-1.
2. Respondent is Laz I, Inc. (ARespondent@), which is owner of a McDonald’s Restaurant, located at Interstate 65 and State Road 114 in Rensselaer, Jasper County, Indiana. Laz I, Inc. operates a 0.007 MGD, Class I, wastewater treatment plant (WWTP) at the McDonald’s Restaurant under NPDES Permit IN 0052833 (the Permit). The discharge goes to Pancost Ditch via Outfall 001.
3. The Indiana Department of Environmental Management ("IDEM") has jurisdiction over the parties and subject matter of this action.
4. Pursuant to IC 13-30-3-3, on March 7, 2000, IDEM issued a Notice of Violation via Certified Mail to:
Mr. Larry M. Kosanovich, President
Laz I, Inc.
8834 West State Road 114
Rensselaer, Indiana 47978
5. Part I.A.1. and Part II.A.6. of the Permit provides that all reasonable steps shall be taken to minimize any adverse impact to navigable waters resulting from noncompliance with any effluent limitations. Part I.B.1. and Part II.B.1. of the Permit provide that the Respondent shall maintain a copy of the required monitoring records at the permitted facility and that these records must be accessible to the inspector. Part II.A.5. of the Permit provides that the Respondent shall maintain the facility in good working order to ensure efficient operation.
6. Pursuant to IC 13-30-2-1, no person may discharge, emit, cause, allow, or threaten to discharge, emit, cause, or allow any contaminant or waste including any noxious odor, either alone or in combination with contaminants from other sources, into the environment or into any publicly owned treatment works in any form which causes or would cause pollution which violates rules, standards, or discharge of emission requirements adopted by the appropriate board pursuant to this article.
7. Pursuant to 327 IAC 5-2-8(1), the Respondent’s NPDES permit requires compliance with all terms and conditions of their NPDES permit; any non-compliance constitutes a violation of the Clean Water Act (CWA) and the Environmental Management Act (EMA) and is grounds for enforcement action.
8. 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.
9. Pursuant to 327 IAC 5-2-8(8), 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 installed or used by the permittee and necessary for achieving compliance with terms and conditions of the permit.
11. Pursuant to 327 IAC 5-2-13(2), to assure compliance with permit terms and conditions, all permittees shall monitor, as required in the permit, the volume of wastewater flow at monitoring points specified in the permit, including the final effluent flow from each point source.
12. The March 18, 1998, inspection indicated, among other things: that numerous violations of Dissolved Oxygen and two (2) Oil and Grease violations had occurred; the flow meter had been out of service in May of 1997; the parking area storm water runoff discharges into the polishing pond; dead spots were in the aeration tank and sludge was in the clarifier; and the records and reports were unsatisfactory in that there was no permit on-site.
13. The August 2, 1999, inspection indicated, among other things: that the receiving waters were unsatisfactory in that the ditch was dark with black septic solids in the stream bed; the records and reports and self-monitoring program were unsatisfactory in that the permit, records, and reports were not available; and the operation and maintenance and the facility site review were evaluated as unsatisfactory. Additionally it was noted: the supplemental aeration system was not in service; the diffusers in the permanent installation were clogged and otherwise out of service; the air supply was inadequate; trash was on the weirs of the secondary clarifier; and there was heavy vegetative growth around the plant making access difficult and dangerous.
14. A record review indicates that the Respondent violated its effluent limitations for: 1) Oil & Grease in August 1997 and April 1998, 2) Total Suspended Solids in August and September 1999, and 3) Dissolved Oxygen during one or more days during every month from January 1998 to October 1999, in violation of Part I.A.1. and Part II.A.6. of the Permit, and 327 IAC 5-2-8(1).
15. The Respondent’s failure to maintain the WWTP in good working order and operate all facilities and systems at the WWTP as efficiently as possible and in a manner which will minimize upsets and discharges of excessive pollutants, as documented during the March 18, 1998 and August 2, 1999 inspections, are violations of Part II.A.5. of the Permit, and 327 IAC 5-2-8(8). The septic solids in Pancost Ditch are in violation of Part I.A.1. and Part II.A.6. of the Permit, 327 IAC 2-1-6(a)(1), and IC 13-30-2-1.
16. The Respondent failed to provide a system or communicate to their employees the procedures to allow IDEM inspectors access to wastewater treatment plant records or copies of wastewater treatment plant records in the Respondent's absence, in violation of Part I.B.8. and Part II.B.1. of the Permit and 327 IAC 5-1-3.
17. On October 19, 1999, the IDEM, Office of Water Management, Permits and Compliance Branch, sent a letter to Respondent which stated that effluent flow monitoring was not being conducted as required by the Part I.A.1. of the Permit and 327 IAC 5-2-13(a)(2).
18. On May 4, 2000, a settlement conference was held during which the Respondent explained that the August 2, 1999 IDEM inspection indicating septic solids in the receiving stream was in error. Upon further discussion it was determined that a section of Pancost Ditch serves as the polishing pond for the Respondent's system. IDEM had approved this arrangement in the 1990 and 1995 NPDES Permit.
19. 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 approved by the Complainant or her delegate, and has been received by the Respondent. This Agreed Order shall have no force or effect until the Effective Date.
2. Respondent shall comply with all terms and conditions of its NPDES permit No. IN 0052833 and applicable sections of the Indiana Code and the Indiana Administrative Code, including the monitoring and reporting requirements of the NPDES permit.
3. Within thirty (30) days from the Effective Date of this Order, the Respondent shall submit to IDEM for its approval a Compliance Plan (CP) which addresses the violations cited above. The CP is subject to the approval of IDEM. If IDEM deems the plan inadequate, a revised plan shall be submitted within thirty (30) days of receipt of notice from IDEM of the inadequacies thereof. If after submission of the revised document(s) IDEM still finds that the document(s) are inadequate, then IDEM may require further modification of the CP as necessary to meet IDEM's requirements. If further modification does not meet IDEM's approval, IDEM will suggest appropriate modification to be undertaken by Respondent within specified time frames. If such modification is not timely undertaken or an alternative plan timely submitted by the Respondent is not approved by IDEM, the Respondent will be subject to stipulated penalties. Respondent shall immediately implement the CP, upon written notification by IDEM that the CP has been approved.
The CP shall include but not be limited to:
a. A plan for improvements to the infrastructure of its treatment facility to assure compliance with flow measurement and effluent limitations for dissolved oxygen, total suspended solids and oil and grease.
b. A plan for assuring that all facilities are operated as efficiently as possible and in a manner which will minimize plant upsets, violation of effluent limitations, and discharge of excessive pollutants, as required by Part II.A.5.(a) of the NPDES permit. This shall include a description of how Respondent plans to assure that all facilities are maintained in good working order and efficiently operated at all times, including the responsibilities and periods of attendance of a certified operator.
4. Beginning thirty days after the completion of the measures included in the approved CP, as described above, and lasting for a period of one year, the Respondent shall be under a performance period during which the Respondent shall maintain compliance with the Total Suspended Solids and Oil and Grease Monthly Average effluent limitations and the Dissolved Oxygen Daily Minimum effluent limitations of its NPDES permit. The performance period will end after IDEM serves notice that six (6) consecutive months of compliance with Monthly Average Dissolved Oxygen, Total Suspended Solids and Oil and Grease effluent limitations have been achieved. Should Respondent fail to demonstrate six (6) consecutive months of compliance with monthly average Dissolved Oxygen, Total Suspended Solids and Oil and Grease effluent limitations during the performance period, then IDEM may, at its discretion, initiate an additional enforcement action.
5. As agreed upon in the May 4, 2000 settlement conference, the Respondent will maintain the records for the wastewater treatment facility at the following location in the McDonald's restaurant:
A locked cabinet behind the front counter
The IDEM inspector, after showing identification, will have access to this location; to allow records to be reviewed when the Respondent is not on the premises or is out of town.
6. All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:
Linda McClure, Case Manager, Office of Enforcement
Indiana Department of Environmental Management
100 North Senate Avenue
P.O. Box 6015
Indianapolis, Indiana 46206-6015
7. Respondent is assessed a civil penalty of Five Thousand Nine Hundred and Seventy-Five Dollars ($5,975). Said penalty amount shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the Effective Date of this Agreed Order.
8. In the event the following terms and conditions are violated, the Complainant may assess and the Respondent shall pay a stipulated penalty in the following amounts:
Violation
PenaltyFailure to comply with Order paragraph No. 3 $300 per week
Failure to comply with Order paragraph No. 4 $500 per month
Failure to comply with Order paragraph No. 5 $500 per event
9. Stipulated penalties shall be due and payable within thirty (30) days after Respondent receives written notice that the Complainant has determined a stipulated penalty is due. Assessment and payment of stipulated penalties shall not preclude the Complainant from seeking any additional relief against the Respondent for violation of the Agreed Order. In lieu of any of the stipulated penalties given above, the Complainant may seek any other remedies or sanctions available by virtue of Respondent’s violation of this Agreed Order, or Indiana law, including but not limited to civil penalties pursuant to IC 13-30-4.
10. Civil and stipulated penalties are payable by check to the Environmental Management Special Fund. Checks shall include the Cause Number of this action and shall be mailed to:
Cashier
Indiana Department of Environmental Management
100 N. Senate Avenue
P. O. Box 7060
Indianapolis, IN 46207-7060
11. In the event that the civil penalty required by paragraph 7 is not paid within thirty (30) days of the Effective Date of this Agreed Order, Respondent shall pay interest on the unpaid balance at the rate established by IC 24-4.6-1-101. The interest shall continue to accrue until the civil penalty is paid in full.
12. This Agreed Order shall apply to and be binding upon the Respondent, its officers, directors, principals, agents, successors, subsidiaries, and assigns. The Respondent’s signatories to this Agreed Order certify that they are fully authorized to execute this document and legally bind the parties they represent. No change in ownership, corporate, or partnership status of the Respondent shall in any way alter its status or responsibilities under this Agreed Order.
13. In the event that any terms of the 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 the Agreed Order did not contain the invalid terms.
14. The Respondent shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights to the restaurant 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.
15. This Agreed Order shall remain in effect until Respondent has complied with the requirements of paragraphs 2 through 5 and 7 of this Agreed Order, and Complainant issues a Resolution of Cause letter.
TECHNICAL RECOMMENDATION: RESPONDENT:
Department of Environmental Management
By: _________________________ By: _________________________
Mark W. Stanifer, Section Chief
Office of Enforcement Printed: ________________________
Title: ________________________
Date: _______________ Date: _______________
COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT
:Department of Environmental Management
By: _________________________ By: _____________________
Sierra L. Cutts, Attorney
Office of Legal Counsel
Department of Environmental Management
Date: _______________ Date: _______________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _____ DAY OF ____________________, 2000.
For the Commissioner,
Signed November 21, 2000
___________________________
Felicia A. Robinson
Assistant Commissioner of Enforcement