STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT
) SS: OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION )
COMMISSIONER OF THE DEPARTMENT )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
)
v. ) CASE NO. 2001-10821-W
)
Gem Utilities, 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.
2. The Respondent is Gem Utilities, Inc., ("Respondent"), which owns and operates a wastewater utility located at 1111 West Main Street, Suite K, in Greenfield, Hancock County, Indiana. The Respondent is authorized to collect and treat wastewater by NPDES Permit #IN0058009.
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, IDEM issued a Notice of Violation via Certified Mail to:
Mr. Steven R. Reilly, President and Registered Agent
Gem Utilities, Inc.
1111 West Main Street, Suite K
Greenfield, Indiana 46140
5. A record review, on July 25, 2001, was conducted by a representative of IDEM’s Office of Water Quality. The following violations were in existence or observed at the time of this record review:
A. Pursuant to 327 IAC 3-2-1, no person shall cause or allow the construction, installation, or modification of any water pollution treatment/control facility or sanitary sewer, without a valid construction permit issued by the commissioner. The Respondent began construction of a lift station and an accompanying 5466 linear feet of various types and diameters of sewer main in Time Capsule Park, approximately 600 feet south of U.S. Highway 40 and 600 feet east of County Road 600W in New Palestine, Hancock County, Indiana, in May 2001 prior to the issuance of a valid construction permit by the commissioner, in violation of 327 IAC 3-2-1.
B. Pursuant to 327 IAC 3-2-2(d), construction shall not commence until all necessary state approvals and permits are obtained. The Respondent initiated construction of a lift station and an accompanying 5466 linear feet of various types and diameters of sewer main in Time Capsule Park, approximately 600 feet south of U.S. Highway 40 and 600 feet east of County Road 600W in New Palestine, Hancock County, Indiana, in May 2001 prior to obtaining all necessary state approvals and permits, in violation of 327 IAC 3-2-2(d).
6. On April 4, 2001, IDEM received from the Respondent an Application for Water Pollution Control Facility Construction Permit for the construction of a lift station and accompanying sewer mains in Time Capsule Park.
7. On April 20, 2001, IDEM sent to the Respondent a Deficiency Notice for Construction Permit Application which identified several administrative and technical deficiencies that needed to be corrected or resolved to complete the Respondent's application. This notice advised the Respondent that the permit application would be denied on the basis of incompleteness if all deficient items were not corrected or resolved within 60 days from the date of the notice.
8. On July 16, 2001, IDEM sent to the Respondent a letter stating that IDEM had received no response from the Respondent regarding the April 4, 2001, notice and that, therefore, the Respondent's permit application had been denied due to incompleteness.
9. On July 19, 2001, IDEM received a telephone call from the Respondent's surveyor for the Time Capsule Park lift station project, during which the Respondent's surveyor stated that the lift station had already been installed.
10. On July 30, 2001, the Respondent submitted to IDEM "as-built" plans and specifications for the lift station installed in Time Capsule Park. Additional information was submitted by the Respondent on August 20, 27, and 29, 2001.
11. On September 26, 2001, IDEM sent to the Respondent a letter stating that the Respondent's "as-built" plans had been reviewed, and that the indicated construction was acceptable and IDEM did not object to the use of said construction, providing certain conditions were met.
12. The Respondent has not yet put the lift station into service.
13. 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 ("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. The Respondent shall comply with all applicable provisions of the Indiana Code ("IC"), Indiana Administrative Code ("IAC"), and any effective permits, including, but not limited to, 327 IAC 3-2-1 and 327 IAC 3-2-2(d).
3. The Respondent is assessed a civil penalty of Two Thousand, Two Hundred Dollars ($2,200). Said penalty amount shall be due and payable to the Environmental Management Special Fund within 30 days of the Effective Date of this Agreed Order.
4. Civil 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:
Cashier
Indiana Department of Environmental Management
100 N. Senate Avenue
P. O. Box 7060
Indianapolis, IN 46207-7060
5. In the event that the civil penalty required by Order Paragraph 3 is not paid within thirty (30) days of the Effective Date of this Agreed Order, the 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.
6. This Agreed Order shall apply to and be binding upon the Respondent, its successors, 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.
7. 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.
8. 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.
9. This Agreed Order shall remain in effect until the Respondent complies with the terms of Order Paragraphs 3 through 5 and IDEM issues a Resolution of Case letter to the Respondent.
TECHNICAL RECOMMENDATION: RESPONDENT:
Department of Environmental Management Gem Utilities, Inc.
By: ______________________________ By: ______________________________
Mark W. Stanifer
Section Chief, Water Section Printed: _____________________________
Office of Enforcement
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 __________________________, 200___.
For The Commissioner:
Original signed on December 27, 2001, by
Felicia A. Robinson
Deputy Commissioner for Legal Affairs