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. 2000-8977-W
)
KHULNA, INC., )
)
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.
a. Comply with all terms and conditions of the permit.
b. Take all reasonable steps to minimize or correct any adverse impact on the environment resulting from noncompliance with the permit.
c. Allow the commissioner, or an authorized representative, to enter the premises and have access to records, inspect the premises or collect samples, at reasonable times and upon presentation of appropriate credentials.
d. At all times maintain in good working order and efficiently operate all facilities and systems (and related appurtenances) for collection and treatment which are necessary for achieving compliance with the terms and conditions of the permit.
e. Comply with the monitoring, recording, and reporting requirements established in 327 IAC 5-2-13, 327 IAC 5-2-14, and 327 IAC 5-2-15.
f. Comply with the appropriate additional treatment requirements established in 327 IAC 5-10.
Failure to comply with any of these requirements, pursuant to 327 IAC 5-2-8, constitutes a violation of the Respondent=s NPDES permit.
5. Pursuant to 327 IAC 5-2-12, the Respondent=s NPDES Permit contains a schedule of compliance that required the Respondent to meet the following schedule:
a. By January 31, 1997, submit a Progress Report that outlined how the Respondent intended to meet the final effluent limitations for Total Residual Chlorine (TRC) and Dissolved Oxygen (DO).
b. By June 30, 1997, submit a Construction Permit Application for any construction necessary to meet the final effluent limitations for TRC and DO.
c. By February 28, 1998, begin any construction necessary to meet the final effluent limitations for TRC and DO.
d. By September 30, 1998, complete any construction necessary to meet the final effluent limitations for TRC and DO.
e. By October 31, 1998, meet the final effluent limitations for TRC and DO.
Failure to comply with this schedule, pursuant to 327 IAC 5-2-8 and 327 IAC 5-2-12, constitutes a violation of the Respondent=s NPDES Permit.
6. Pursuant to 327 IAC 5-2-13, the Respondent=s NPDES Permit requires the Respondent to monitor the following:
a. The mass, concentration, or other measurement specified in 327 IAC 5-2-11 or 327 IAC 5-2-11.1 for each pollutant specified in the permit.
b. The volume of wastewater flow at monitoring point specified in the permit, including the final effluent flow from each point source.
c. Other parameters and conditions as specifically required in the permit.
Failure to comply with these monitoring requirements, pursuant to 327 IAC 5-2-8 and 327 IAC 5-2-13, constitutes a violation of the Respondent=s NPDES Permit.
7. Pursuant to 327 IAC 5-2-14, the Respondent=s NPDES Permit requires the Respondent to maintain records, for at least three (3) years, of all monitoring information and monitoring activities required under 327 IAC 5-2-13, including the following:
a. The date, exact place, and time of the sampling or monitoring and the person(s) who performed the sampling or monitoring.
b. The date(s) the analyses were performed and the person(s) who performed the analyses.
c. The analytical techniques or methods used and the results of those measurements and analyses.
Failure to maintain any of these records, pursuant to 327 IAC 5-2-8 and 327 IAC 5-2-14, constitutes a violation of the Respondent=s NPDES Permit.
8. Pursuant to 327 IAC 5-10-6(a), the Respondent=s NPDES Permit requires the Respondent to continuously disinfect the effluent from its facility annually from April 1 through October 31. Failure to disinfect the facility=s effluent, pursuant to 327 IAC 5-2-8 and 327 IAC 5-10-6(a), constitutes a violation of the Respondent=s NPDES Permit.
9. On April 4, 1996, IDEM notified the Respondent of the renewal of its NPDES Permit, Number IN0045063, for the WWTP at the Days Inn in New Castle. The permit became effective on May 1, 1996, and included the following:
a. Monitoring requirements and effluent limitations for flow, carbonaceous biological oxygen demand (CBOD5), total suspended solids (TSS), pH, DO, and TRC.
b. Records reporting and retention requirements.
c. A Schedule of Compliance, including the provisions for the installation of a disinfection system, if necessary.
10. On January 31, 1997, the 9-month Progress Report required by the Schedule of Compliance, Part I, Section D, of the Respondent=s NPDES Permit, was due. The Respondent failed to submit this report by the required deadline, pursuant to 327 IAC 5-2-8 and 327 IAC 5-2-12, in violation of its NPDES Permit.
11. By June 30, 1997, a Construction Permit Application for any construction necessary to meet the final effluent limitations for TRC and DO, required by the Schedule of Compliance, Part I, Section D, of the Respondent=s NPDES Permit, was due. The Respondent failed to submit this Construction Permit Application by the required deadline, pursuant to 327 IAC 5-2-8 and 327 IAC 5-2-12, in violation of its NPDES Permit.
12. On January 13, 1998, IDEM conducted an inspection of the Respondent=s WWTP. This inspection revealed the following deficiencies:
a. The Respondent failed to properly maintain and operate its WWTP, pursuant to 327 IAC 5-2-8, by not having a high water alarm, allowing the tanks to overflow, allowing the contents of the secondary clarifier and the final effluent to be turbid, and improperly bypassing the sand filters, in violation of its NPDES Permit.
b. The Respondent failed to properly monitor its effluent and maintain monitoring records, pursuant to 327 IAC 5-2-8, 327 IAC 5-2-13, and 327 IAC 5-2-14, by failing to report overflows to IDEM, not maintaining appropriate sampling logs, and maintaining records that inaccurately represented the WWTP=s condition, in violation of its NPDES Permit.
13. By February 28, 1998, any construction necessary to meet the final effluent limitations for TRC and DO, required by the Schedule of Compliance, Part I, Section D, of the Respondent=s NPDES Permit, was due to begin. The Respondent failed to begin this construction by the required deadline, pursuant to 327 IAC 5-2-8 and 327 IAC 5-2-12, in violation of its NPDES Permit.
14. On April 8, 1998, IDEM conducted an inspection of the Respondent=s WWTP. This inspection revealed the following deficiencies:
a. The Respondent failed to properly operate and maintain its WWTP, pursuant to 327 IAC 5-2-8, by frequently bypassing the sand filters and failing to maintain the walkways around the filters, in violation of its NPDES Permit.
b. The Respondent failed to properly monitor its effluent and maintain monitoring records, pursuant to 327 IAC 5-2-8, 327 IAC 5-2-13, and 327 IAC 5-2-14, by failing to maintain appropriate sampling logs on site, in violation of its NPDES Permit.
15. On September 9, 1998, the Respondent submitted to IDEM its 9-month Progress Report and compliance schedule, in accordance with its NPDES Permit.
16. On October 5, 1998, IDEM issued a Warning of Noncompliance (WONC) regarding the submission of the first progress report and the installation of dechlorination measures. The first progress report was due by January 31, 1997, but was not submitted until September 9, 1998. Dechlorination measures, required of facilities using chlorination as a means of disinfection during the annual disinfection season of April through October, were not installed for use during the 1998 disinfection season. The WONC advised the Respondent to have dechlorination measures installed by the beginning of the 1999 disinfection season.
17. By September 30, 1998, any construction necessary to meet the final effluent limitations for TRC and DO, required by the Schedule of Compliance, Part I, Section D, of the Respondent=s NPDES Permit, was due to be completed. The Respondent failed to complete construction by the required deadline, pursuant to 327 IAC 5-2-8 and 327 IAC 5-2-12, in violation of its NPDES Permit.
18. By October 31, 1998, compliance with the final effluent limitations for TRC and DO, required by the Schedule of Compliance, Part I, Section D, of the Respondent=s NPDES Permit, was due to be met. The Respondent failed to meet compliance with the final effluent limitations for TRC by the required deadline, pursuant to 327 IAC 5-2-8 and 327 IAC 5-2-12, in violation of its NPDES Permit.
19. On February 8, 1999, the Respondent submitted a Construction Permit Application, along with plans and specifications, for the installation of an ultraviolet (UV) disinfection system.
20. On February 25, 1999, IDEM sent to the Respondent a Deficiency Notice regarding the construction application submitted on February 8, 1999. The noted deficiencies included the lack of a complete plan and section view drawings for, and concerns regarding the proper sizing of, the proposed UV system.
21. On March 5, 1999, the Respondent submitted to IDEM a request for an extension of the deadline by which to have a disinfection system installed. This request was based the unexpected delays the Respondent was encountering in obtaining a construction permit.
22. On March 9, 1999, IDEM conducted an inspection of the Respondent=s WWTP. The inspection revealed the following deficiencies:
a. The Respondent failed to properly operate and maintain its WWTP, pursuant to 327 IAC 5-2-8, by failing to maintain and bypassing the sand filters, in violation of its NPDES Permit.
b. The Respondent failed to properly monitor its effluent and maintain monitoring records, pursuant to 327 IAC 5-2-8, 327 IAC 5-2-13, and 327 IAC 5-2-14, by failing to maintain the appropriate sampling logs on site, in violation of its NPDES Permit.
23. On March 29, 1999, IDEM sent to the Respondent a letter denying the Respondent an extension of the deadline to install a disinfection system. This denial was based on the Respondent=s NPDES Permit, which had required a disinfection system installed by November 1998, and the WONC IDEM issued to the Respondent on October 25, 1998.
24. On May 3, 1999, IDEM conducted an inspection of the Respondent=s WWTP. This inspection revealed the following deficiencies:
a. The Respondent failed to properly operate and maintain its WWTP, pursuant to 327 IAC 5-2-8, by bypassing the sand filters and failing to maintain the chlorination equipment, in violation of its NPDES Permit.
b. The Respondent failed to properly monitor its effluent and maintain monitoring records, pursuant to 327 IAC 5-2-8, 327 IAC 5-2-13, and 327 IAC 5-2-14, by failing to properly maintain sampling logs, in violation of its NPDES Permit.
c. The Respondent failed to continuously chlorinate its effluent due to the malfunctioning chlorination equipment, pursuant to 327 IAC 5-2-8 and 327 IAC 5-10-6(a), in violation of its NPDES Permit.
25. On May 28, 1999, IDEM issued to the Respondent a Construction Approval, Number 12822, for the installation of a UV disinfection system and removal of the existing chlorination equipment.
26. On July 7, 1999, IDEM conducted an inspection of the Respondent=s WWTP. This inspection revealed the following deficiencies:
a. The Respondent failed to properly monitor its effluent and maintain monitoring records, pursuant to 327 IAC 5-2-8, 327 IAC 5-2-13, and 327 IAC 5-2-14, by not recording plant flow and monitoring information, and improperly storing monitoring samples, in violation of its NPDES Permit.
b. The Respondent failed to continually disinfect its final effluent, pursuant to 327 IAC 5-2-8 and 327 IAC 5-10-6(a), in violation of its NPDES Permit.
27. On September 24, 1999, IDEM conducted a review of the Discharge Monitoring Reports (DMRs) submitted by the Respondent for its WWTP for the period of January 1, 1998, through July 30, 1999, that indicated the following violations had occurred:
a. During January 1998, the Respondent failed to meet both the Monthly Average and Maximum Weekly TSS concentration limitations established in its NPDES Permit, pursuant to 327 IAC 5-2-8, in violation of its NPDES Permit.
b. During February 1998, the Respondent failed to meet the Maximum Weekly TSS concentration limitation established in its NPDES Permit, pursuant to 327 IAC 5-2-8, in violation of its NPDES Permit.
c. During December 1998 and April 1999, the Respondent failed to meet the Maximum Weekly CBOD5 concentration limitation established in its NPDES Permit, pursuant to 327 IAC 5-2-8, in violation of its NPDES Permit.
d. During April, May, and June 1999, the Respondent failed to monitor and report both the Final Effluent Minimum and Maximum Total Chlorine Residual levels, pursuant to 327 IAC 5-2-8, 327 IAC 5-2-13, and 327 IAC 5-2-14, in violation of its NPDES Permit.
e. During July 1999, the Respondent failed to meet both the Final Effluent Minimum and Maximum Total Chlorine Residual concentration limitations established in its permit, pursuant to 327 IAC 5-2-8, in violation of its NPDES Permit.
28. On March 31, 2000, the Respondent completed the installation of the UV disinfection system.
29. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation on June 9, 2000, via Certified Mail to:
Mr. Abu Rahmatullah, President and Registered Agent
Khulna, Inc.
5 Lakewood Drive
Greenfield, Indiana 46140
30. On August 3, 2000, the Respondent submitted an Operations and Maintenance (O & M) Manual that included standard operating procedures, preventive maintenance schedules, and sludge management procedures.
31. On August 23, 2000, IDEM conducted an inspection of the Respondent=s WWTP. Only the following minor deficiencies were identified:
a. The flow meter needed to be calibrated by a qualified technician.
b. All four sand filter beds needed approximately six inches of sand added.
c. The second blower needed to be installed and made functional.
d. The perimeter fence needed to be repaired.
e. The facility needed a small refrigerator to properly keep samples requiring cooling.
32. On August 28, 2000, IDEM approved the O & M Manual submitted by the Respondent based on the present configuration of the system and treatment processes being utilized at the treatment plant.
33. In recognition of the settlement reached, the Respondent waives any right to administrative and judicial review of this Agreed Order.
II. ORDER
1. This Agreed Order shall be effective (hereinafter referred to as AEffective 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. Within 60 days of the Effective Date of this Agreed Order, the Respondent shall address the deficiencies noted during the August 23, 2000, inspection by do the following:
a. Either having the flow meter calibrated by a qualified technician or submitting a Compliance Plan (CP) that details and outlines the schedule for the replacement of the flow meter. The CP, if submitted, shall be subject the approval of IDEM in accordance with Paragraph 6 below.
b. Adding at least six inches of sand to each of the four sand filter beds.
c. Installing the second blower and making sure it is functional.
d. Repairing the perimeter fence.
e. Purchasing a small refrigerator to used for sample storage at the facility.
3. Within 60 days of the date of any future inspection of its WWTP, the Respondent shall adequately address any item noted as AUnsatisfactory@ during the inspection.
4. The O & M Manual, submitted to IDEM by the Respondent on August 3, 2000, and approved by IDEM on August 28, 2000, is hereby incorporated into this Agreed Order and deemed an enforceable part thereof.
5. In the event that the system configuration or treatment processes are significantly altered, or the operation of the plant is modified to the extent that the most recently approved O & M Manual does not reflect actual operation of the system, the Respondent shall, within 30 days of effecting such changes, submit an Updated O & M Manual. The Updated O & M Manual shall be subject to the approval of IDEM in accordance with Paragraph 6 below.
6. Any Flow Meter Replacement CP or Updated O & M Manual shall be subject to the approval of IDEM. If the document is deemed inadequate by IDEM, the Respondent shall revise and resubmit it within fifteen (15) days of receipt of notice from IDEM of the inadequacies thereof. If, after submission of the revised document, IDEM still finds it inadequate, then IDEM may require further modification of the document 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 the Respondent. If such modification is not undertaken by the Respondent, or an alternative document submitted by the Respondent is not approved by IDEM, the Respondent will be subject to stipulated penalties.
7. IDEM shall notify the Respondent, in writing, either the Flow Meter Replacement CP or an Updated O & M Manual is approved. The Respondent, upon receipt of written notification from IDEM, shall immediately implement the approved document. The approved document shall be incorporated into the Agreed Order and be deemed an enforceable part thereof.
8. Immediately upon the Effective Date of this Agreed Order, the Respondent shall ensure that all reports required to be submitted to IDEM are correctly completed.
9. Unless notified otherwise in writing, all submittals required by this agreed Order shall be sent to:
Ms. Susan Baker
Water Section, Office of Enforcement, IGCN 1315
Indiana Department of Environmental Management
P.O. Box 6015
Indianapolis, Indiana 46206-6015
10. AForce Majeure@, for purposes of this Agreed Order, is defined as any event arising from causes beyond the control of the Respondent that delays or prevents the performance of any obligation under this Agreed Order despite the Respondent=s best efforts to fulfill the obligation. The requirement that the Respondent exercise Abest efforts to fulfill the obligation@ includes using best efforts to anticipate any potential force majeure event and best efforts to address the effects of any potential force majeure event (1) as it is occurring and (2) following the potential force majeure event, such that the delay is minimized to the greatest extent possible. AForce Majeure@ does not include financial inability to complete the work required by this Agreed Order or increases in costs to perform the work.
The Respondent shall notify IDEM by calling within three (3) calendar days and by writing no later than seven (7) calendar days after any event which the Respondent contends is a force majeure. Such notification shall describe the anticipated length of the delay, the cause or causes of the delay, the measures taken or to be taken by the Respondent to minimize the delay, and the timetable by which these measures will be implemented. The Respondent shall include with any notice all available documentation supporting their claim that the delay was attributable to a force majeure. Failure to comply with the above requirements shall preclude the Respondent from asserting any claim of force majeure for that event. The Respondent shall have the burden of demonstrating that the event is a force majeure. The decision of whether an event is a force majeure shall be made by IDEM. Said decision shall be communicated to the Respondent.
If a delay is attributable to a force majeure, IDEM shall extend, in writing, the time period for performance under this Agreed Order, by the amount of time that is attributable to the event constituting the force majeure.
11. The Respondent is assessed a civil penalty of Seven Thousand, Two Hundred Fifty Dollars ($7,250). The civil penalty shall be paid in the following manner:
Payment Due Date
Amount1 month after Effective Date $500
2 months after Effective Date $500
3 months after Effective Date $500
4 months after Effective Date $500
5 months after Effective Date $650
6 months after Effective Date $650
7 months after Effective Date $650
8 months after Effective Date $650
9 months after Effective Date $650
10 months after Effective Date $650
11 months after Effective Date $650
12 months after Effective Date $700
12. In the event that the civil penalty required by Section II, Paragraph 11, is not paid in accordance with the established schedule, the Respondent shall pay interest on the unpaid amounts 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.
13. 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
PenaltyParagraph 2 $1000 per each item per each day past the 60-day deadline that the Respondent fails to address.
Paragraph 3 $1000 per each day past the 60-day deadline that the Respondent fails to adequately address any item noted as AUnsatisfactory@ during an inspection.
Paragraph 4 $500 per each failure of the Respondent to adequately follow the approved O & M Manual.
Paragraph 5 $100 per each day past the 30-day deadline that the Respondent fails to submit any required Updated O & M Manual.
Paragraph 6 $100 per each day past the 15-day deadline that the Respondent fails to submit any required revision to either the Flow Meter Replacement CP or Updated O & M Manual.
$1000 per any failure of the Respondent to adequately revise the Flow Meter Replacement CP or Updated O & M Manual after IDEM=s third request for modification.
Paragraph 7 $500 per each failure of the Respondent to adequately follow the approved Flow Meter Replacement CP or Updated O & M Manual.
Paragraph 8 $500 per each report required to be submitted to IDEM that the Respondent fails to correctly complete.
12. Stipulated penalties shall be due and payable within thirty (30) days after the 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 the Respondent's violation of this Agreed Order, or 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 Agreed Order and shall be mailed to:
Cashier
Indiana Department of Environmental Management
100 N. Senate Avenue
P. O. Box 7060
Indianapolis, IN 46207-7060
14. 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.
15. 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.
16. The Respondent shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights are transferred. The Respondent shall ensure that all contractors, firms and other persons performing work under this Agreed Order comply with the terms of this Agreed Order.
17. This Agreed Order shall remain in effect for at least twelve (12) months after the Effective Date of this Agreed Order and until the Respondent has complied with all terms and conditions of this Agreed Order.
TECHNICAL RECOMMENDATION: RESPONDENT:
Department of Environmental Management
By: By:
Mark Stanifer, Section Chief
Office of Enforcement Printed:
Title:
Date: Date:
COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT
:Department of Environmental Management
By: By:
Office of Legal Counsel
Date: Date:
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS DAY OF , 2000.
FOR THE COMMISSIONER:
Original signed on November 2, 2000
Felicia A. Robinson
Assistant Commissioner
Office of Enforcement