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. 2001-10932-W

)

MEKA, 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. Pursuant to 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 (AComplainant@) of the Indiana Department of Environmental Management, a department of the State of Indiana created by IC 13-13-1-1.

2. Respondent is MEKA, Inc. (ARespondent@), owner and operator of the Highlander Point Shopping Center semi-public sanitary sewer system and wastewater treatment plant (WWTP), located at the intersection of new U.S. 150 and Old Vincennes Road, 1.5 miles southwest of Floyds Knobs, in Floyd County, Indiana. The Respondent is authorized by National Pollutant Discharge Elimination System (NPDES) Permit No. IN 0050032 (the Permit) to discharge treated effluent from the WWTP to receiving waters consisting of an unnamed tributary to Little Indian Creek.

3. The Indiana Department of Environmental Management (AIDEM@) has jurisdiction over the parties and the subject matter of this action.

4. Pursuant to IC 13-30-3-3, on January 27, 2003, IDEM issued a Notice of Violation via Certified Mail to:

Robert J. Koetter, President                     Robert P. Elsby, Registered Agent
MEKA, Inc.                                         MEKA, Inc.
7393 Pete Andres                                 6410 Reasor Road
Floyds Knobs, Indiana 47119                 Floyds Knobs, Indiana 47119

5. Pursuant to IC 13-30-2-1, a person may not 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 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.

6. Pursuant to 327 IAC 5-2-2, any discharge of pollutants into waters of the state as a point source discharge, except for exclusions made in 327 IAC 5-2-4, is prohibited unless in conformity with a valid NPDES permit obtained prior to the discharge.

7. Pursuant to 327 IAC 5-2-8(1) and Part II.A.1 of the Permit, the Respondent is required to comply with all terms and conditions of the Permit.

8. Pursuant to Part I.A.1 of the Permit, the Respondent is required to comply with the effluent limitations applicable to the discharge from Outfall 001.

Discharge Monitoring Reports (DMRs), Monthly Reports of Operation (MROs), and/or letters submitted by the Respondent to IDEM for the period from October 2001 through September 2002, reveal that the Respondent failed to comply with final effluent limitations applicable to the discharge from Outfall 001 as follows:

The daily minimum effluent requirement for Dissolved Oxygen was violated during October and November of 2001, and during May, June, July, and August of 2002.

The weekly average concentration effluent limitation for Total Suspended Solids (TSS) was violated during November of 2001, and during January, February, March, April, and May of 2002.

The monthly average concentration effluent limitation for TSS was violated during November and December of 2001, and during January, February, March, April, and May of 2002.

The weekly average loading effluent limitation for TSS was violated during November of 2001, and during February, March, April, and May of 2002.

The monthly average loading effluent limitation for TSS was violated during November of 2001, and during February, March, April, and May of 2002.

The weekly average concentration effluent limitation for Ammonia-nitrogen was violated during February, March, April, and May of 2002.

The monthly average concentration effluent limitation for Ammonia-nitrogen was violated during February, March, April, and May of 2002.

The weekly average loading effluent limitation for Ammonia-nitrogen was violated during February, March, April, and May of 2002.

The monthly average loading effluent limitation for Ammonia-nitrogen was violated during February, March, April, and May of 2002.

The weekly average concentration effluent limitation for Carbonaceous Biochemical Oxygen Demand (CBOD5) was violated during February and March of 2002.

The monthly average concentration effluent limitation for CBOD5 was violated during February, March and April of 2002.

The weekly average loading effluent limitation for CBOD5 was violated during February of 2002.

The monthly average loading effluent limitation for CBOD5 was violated during February and March of 2002.

The Respondent's failure to comply with the final effluent limitations contained in the Permit is in violation of IC 13-30-2-1, 327 IAC 5-2-2, 327 IAC 5-2-8(1), Part II.A.1 of the Permit, and Part I.A.1 of the Permit.

9. 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, including a sanitary sewer, without a valid construction permit issued by IDEM.

10. IDEM records indicate that the Respondent initiated construction of a new wastewater treatment plant in August of 2001, without a construction permit issued by IDEM, in violation of 327 IAC 3-2-1.

Attached to a correspondence dated April 15, 2003, the Respondent submitted a Compliance Plan (Attachment A), dated March 30, 2003, that describes actions already taken by the Respondent, as well as actions that will be taken by the Respondent in order to achieve and maintain compliance with the terms and conditions contained in the Permit. Section 3 of the Compliance Plan provided for the installation of a new potable water line to the WWTP and the removal of the existing water line from service. In a September 18, 2003 correspondence to IDEM, the Respondent indicated that these items have been completed.

12. Additionally, on March 20, 2003, the Respondent submitted "as-built" construction plans for the new Highlander Point WWTP to IDEM for review (IDEM Project No. PS-1046X). On April 21, 2003, IDEM sent a deficiency notice to the Respondent regarding the "as-built" construction plans.

On June 17, 2003, the Respondent submitted an amended design summary and amended plan sheets, in response to the April 21, 2003 deficiency notice. On July 21, 2003, IDEM sent a second deficiency notice to the Respondent regarding the revised "as-built" construction plans. This second deficiency notice included notification that if all the deficiency items are not corrected or resolved within 30 days of the date of that letter, the Respondent's application will be denied on the basis of incompleteness.

On August 20 and 29, 2003, the Respondent submitted additional information addressing the issues noted in the second deficiency notice. On September 19, 2003, IDEM sent notification to the Respondent that a review of the plan and specification indicated that they appear to be acceptable provided that following conditions are met:

a. If construction is located within a designated floodway, a permit may be required from the Department of Natural Resources.
b. M.E.K.A. must submit an application for a NPDES permit.
c. Plans for the outfall structure shall be submitted to the Department of Natural Resources.
d. Additional treatment facilities must be installed if the new facilities fail to provide adequate control or if necessary for compliance with more stringent Federal or State pretreatment standards or requirements promulgated subsequent to the date of this approval.

The September 19, 2003 notification stated that if the above conditions are met, IDEM's Facilities Construction Section had no objection to the use of this water pollution treatment/control facility.

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. Respondent shall comply with IC 13-30-2-1(1), 327 IAC 5-2-2, 327 IAC 5-2-8(1), Part II.A.1 of the Permit, Part I.A.1 of the Permit, and 327 IAC 3-2-1.

3. Within 90 days of the Effective Date, the Respondent shall:

a. take all actions necessary to comply with the conditions noted in the September 19, 2003 notice referenced in paragraph 12 of the Findings of Fact of this Agreed Order. Such actions shall include, but not be limited to the following:

i. The Respondent shall seek a determination from the Department of Natural Resources as to whether a permit is required for the construction in a floodway, and if so, submit to the Department of Natural Resources a complete and sufficient permit application;

ii. The Respondent shall submit to IDEM a complete and sufficient application for an NPDES Permit that is reflective of the new WWTP; and

iii. The Respondent shall submit plans for the new WWTP outfall structure to the Department of Natural Resources; and

b. complete and implement all corrective actions necessary to achieve and maintain compliance with the terms and conditions of the Permit. The corrective actions shall include, but not necessarily be limited to, the following actions which were identified in the Compliance Plan (Attachment A) referenced in Finding of Fact Paragraph 11 above:

i. The Respondent shall assure that all sources of inflow and infiltration of clear water into the sanitary sewer system identified during the smoke testing referenced in Section 1 of the Compliance Plan are eliminated;

ii. The Respondent shall assure that all sources of inflow and infiltration of clear water into the manholes identified during the manhole inspections referenced in Section 2 of the Compliance Plan are eliminated, and any flow obstructions are removed;

iii. The Respondent shall develop and implement a Sewer Use Ordinance for the Respondent's sewer system as referenced in Section 4 of the Compliance Plan. Additionally, the Respondent shall locate and inspect all grease traps and interceptors in the collection system and assure that these grease traps and interceptors are properly maintained;

iv. The Respondent shall develop and implement an Operation and Maintenance Manual for the Respondent's sewer system and WWTP as referenced in Section 5 of the Compliance Plan; and

v. The Respondent shall provide for standby power at the wastewater treatment plant and the lift station, as referenced in Section 6 of the Compliance Plan.

4. Within 100 days from the Effective Date of this Order, the Respondent shall submit a final report to IDEM, describing the actions that have been taken pursuant to Order Paragraph 3 above and when they were completed.

5. Beginning 90 days from the Effective Date of this Order, the Respondent shall be subject to the stipulated penalties provided for in Order Paragraph 14 below for the failure to comply with the terms and conditions, including the effluent limitations, contained in the Permit.

6. The Respondent shall, during the 6 month period beginning on May 1, 2004 ("Performance Period"), demonstrate 6 consecutive months of compliance ("Compliance Demonstration") with the terms and conditions, including the effluent limitations, contained in the Permit. With respect to the effluent limitations for total residual chlorine, the Compliance Demonstration must occur during the months in which these effluent limitations are in effect. In the event that the Respondent fails to make the Compliance Demonstration, the Respondent shall, within 60 days of becoming aware that the Compliance Demonstration cannot be achieved, develop and submit to IDEM, for approval, a plan ("action plan") that identifies the corrective actions that the Respondent will take to achieve and maintain compliance with the terms and conditions of the Permit. The action plan shall include an implementation and completion schedule, including specific milestone dates.

7. The action plan shall be subject to the approval of IDEM. If IDEM deems the action plan to be inadequate, a revised action plan shall be submitted within 15 days of receipt of notice from IDEM of the inadequacies thereof. If, after submission of the first revised action plan, IDEM still finds the action plan to be inadequate, then IDEM will request further modification of the action plan as necessary to meet IDEM's requirements, and require re-submittal of the action plan by a specific date. If the subsequently submitted second revised action plan does not meet IDEM's approval, IDEM will suggest specific modifications to be made to the action plan and require re-submittal by a specific date. If, by the specified date, the Respondent does not submit a third revised action plan that incorporates the IDEM-suggested modifications or submit an alternative adequate action plan (as determined by IDEM), the IDEM-suggested modifications will be deemed incorporated into the action plan.

8. The approved action plan shall be incorporated into the Agreed Order and shall be deemed an enforceable part thereof. The Respondent, upon receipt of written approval from IDEM, shall immediately implement the approved action plan and adhere to the milestone dates contained therein.

9. The Respondent shall notify IDEM, in writing, within 10 days of completion of each action contained in the approved action plan. The notification shall include a description of the action completed and the date it was completed.

10. Beginning on the Effective Date of this Agreed Order and continuing until the completion of the corrective actions required pursuant to Order Paragraph 3 above, the Respondent shall, at all times, operate its existing sanitary sewer system and WWTP as efficiently and effectively as possible.

11. With the exception of allowing discharges from septage haulers to discharge to the WWTP as necessary to reseed the WWTP, the Respondent shall not allow any septage haulers to discharge septage to the Respondent's sanitary sewer system or WWTP.

12. Until successful completion of the Compliance Demonstration required by Order Paragraph 6, and if required, the completion of the approved action plan required by Order Paragraph 7, the Respondent shall not allow any connection to its sanitary sewer system that would add more than 1000 gallons per day of wastewater into the Respondent's sewer system or WWTP without written approval from IDEM.

13. All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:

Terry Ressler, Case Manager, Water Enforcement Section
Office of Enforcement, IGCN, Rm. 1315
Indiana Department of Environmental Management
100 N. Senate Avenue
P.O. Box 6015
Indianapolis, IN 46206-6015

14. Respondent is assessed a civil penalty of Four Thousand Four Hundred Dollars ($4,400). 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.

15. In the event the terms and conditions of the following paragraphs are violated, unless the event is determined to be "Force Majeure" pursuant to Paragraph 19 of this Order, the Complainant may assess and the Respondent shall pay a stipulated penalty in the following amount:
 
Order Paragraph Number
Violation
 Penalty Amount
3
 Failure to complete any required action within 90 days of the Effective Date $500 per each week late
4
 Failure to submit a final report to IDEM within 100 days of the Effective Date $250 per each week late
5
 Failure to comply with effluent limitations contained in the current Permit beginning 90 days from the Effective Date $500 per violation
6
 Failure to timely submit an Action Plan $250 per each week late
7
 Failure to revise and/or timely re-submit Action Plan, as required by IDEM $250 per each week late
8
 Failure to implement the approved Action Plan and adhere to the milestone dates therein $500 per each week late
9
 Failure to timely submit notifications $100 per each week late
11
 Allowing a septage hauler to discharge to the sanitary sewer system or the WWTP, except for the purposes of seeding the WWTP  $2,000 per incident
12
 Allowing a connection to the sanitary sewer system that would add more than 1000 gallons per day of wastewater into the Respondent's sewer system or WWTP without written approval from IDEM $5,000 per incident

16. Stipulated penalties shall be due and payable within 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.

17. 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:

Cashier
Indiana Department of Environmental Management
100 N. Senate Avenue
P. O. Box 7060
Indianapolis, IN 46207-7060

 18. In the event that the civil penalty required by Order Paragraph 14 is not paid within 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.

19. "Force Majeure", for purposes of this Agreed Order, is defined as any event arising from causes totally beyond the control and without fault 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 "best 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. "Force Majeure" does not include changed business or economic conditions, 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 the case manager within three calendar days and by writing no later than seven calendar days after it has knowledge of 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 its 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.

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 directly attributable to the event constituting the force majeure.

20. This Agreed Order is not and shall not be interpreted to be a Permit, or a modification of an existing Permit, nor shall it in any way relieve Respondent of its obligation to comply with the requirements of its applicable NPDES Permit or with any other applicable federal or state law or regulation.

21. The Complainant does not, by its approval of this Agreed Order, warrant or aver in any manner that the Respondent's compliance with any aspect of this Agreed Order will result in compliance with the provisions of the Clean Water Act, its NPDES Permit, or state law.

22. 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.

23. 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.

24. The 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.

25. This Agreed Order shall remain in effect until the Respondent has complied with Order Paragraphs 3 through 19, and IDEM issues a close-out letter to the Respondent.

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TECHNICAL RECOMMENDATION: RESPONDENT:

 Department of Environmental Management                 MEKA, Inc.

By: _________________________                         By: _________________________
Mark W. Stanifer
Chief, Water Enforcement Section                             Printed: ______________________

Office of Enforcement
Title: ________________________

Date: ________________________                         Date: ________________________

COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:

Department of Environmental Management

By: _________________________                         By: ________________________

Hala K. Silvey
Office of Legal Counsel

Date: _______________________ Date: ______________________

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _____ DAY OF ___________, 200__.
 

For the Commissioner:

__Signed 3/5/04_________

Felicia A. Robinson
Deputy Commissioner
for Legal Affairs