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. 2002-11198-W
)
Utilimaster Corporation, )
)
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. The Respondent's entry into this Agreed Order shall not constitute a waiver of any defense, legal or equitable, which the Respondent may have in any future administrative or judicial proceeding.
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 Utilimaster Corporation ("Respondent@), which owns and operates
a metal wash and finishing process with a wastewater pretreatment system that
discharges wastewater to the Town of Wakarusa. The Utilimaster Corporation
facility is located at 65906 State Road 19, Wakarusa, in Elkhart County, Indiana.
3. The Indiana Department of Environmental Management (AIDEM@) has jurisdiction over the parties and the subject matter of this action.
4. The Respondent waives its right to issuance of a Notice of Violation and to the settlement period of sixty (60) days as provided for by IC 13-30-3-3(b).
5. Pursuant to 327 IAC 5-18-8(a), industrial users shall comply with applicable pretreatment standards and requirements adopted by the board pursuant to IC 13-14-8-7(a)(8). If state pretreatment standards and national pretreatment standards are applicable to an industrial user, the industrial user shall comply with the more stringent standards.
6. Pursuant to 40 CFR 433.15(a), except as provided in 40 CFR 403.7, any source subject to this subpart that introduces pollutants into a publicly owned treatment works must comply with 40 CFR Part 403 and achieve the pretreatment standards for new sources (PSES) as specified.
7. A site visit by IDEM staff conducted on December 10, 2001, indicated that the Respondent's facility has a metal parts washing and painting line including an iron phosphating process, and an industrial process wastewater discharge to the Town of Wakarusa POTW. The discharge of pollutants from an iron phosphating process subjects the discharger to applicable pretreatment standards. The Respondent had not submitted an application for an Industrial Wastewater Pretreatment (IWP) permit application for its facility, and the facility did not have an IWP permit, and therefore was discharging industrial process wastewater to the POTW in violation of 327 IAC 5-18-8, and 40 CFR 433.
8. Pursuant to 327 IAC 5-18-10, specific categories of federal categorical pretreatment standards are incorporated into the Indiana rules by reference. The discharge of process wastewater from iron phosphating process operated by the Respondent is subject to the federal categorical pretreatment standards for metal finishing from 40 CFR 433, under 327 IAC 5-18-10.
9. Pursuant to 327 IAC 5-17-23(a)(1), industrial users subject to categorical pretreatment standards under 327 IAC 5-18-10 are "significant industrial users" or "SIUs." The Respondent is an industrial user subject to 327 IAC 5-18-10, and is therefore a SIU.
10. Pursuant to 327 IAC 5-21-2(a)(1), SIUs under 327 IAC 5-17-23(a)(1) shall be required to obtain an IWP permit for a discharge of wastewater into a publicly owned treatment works (POTW) that is not required to have an approved POTW pretreatment program under 327 IAC 5-19-1. IDEM has drafted an IWP permit for Utilimaster which will be on public notice until May 10, 2002. However, the Respondent is in violation of 327 IAC 5-21-2(a)(1) because it did not obtain an IWP permit for its discharge to the Wakarusa POTW prior to initiating the discharge.
11. Pursuant to 327 IAC 5-21-2(b), an industrial user subject to the terms of subsection (a) shall submit an application for an IWP permit to the commissioner prior to commencing the discharge of industrial wastewater to a POTW. The Respondent submitted an application for an IWP permit to IDEM on February 21, 2001. However, the Respondent was in violation of 327 IAC 5-17-23(b) because it did not apply for an IWP permit for its discharge to the Wakarusa POTW prior to initiating the discharge.
12. 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 327 IAC 5-18-8(a), 40 CFR Part 433, 327 IAC 5-21-2(a)(1), and 327 IAC 5-21-2(b).
3. Upon the Effective Date of this Order, the Respondent shall comply with all provisions contained in the Town of Wakarusa Sewer Use Ordinance (SUO). Upon the effective date of the Respondent's IWP permit, the Respondent shall comply with all the provisions contained in the Respondent's IWP permit. Beginning on the effective date of the IWP permit, and lasting for a period of one (1) year, the Respondent shall be subject to stipulated penalties, as specified in Paragraph 6 below, for violations of any provisions contained in its IWP or the Town of Wakarusa SUO. In the event that Respondent fails to comply with any provisions contained in its IWP permit or the Town of Wakarusa SUO, Respondent shall, within sixty (60) days of becoming aware that it violated any provision contained in its IWP and the Town of Wakarusa SUO, the Respondent shall develop and submit to IDEM, for its approval, a plan ("action plan") which identifies the corrective actions that Respondent will take to achieve and maintain compliance with the IWP permit Town of Wakarusa SUO. The action plan, if required, shall include an implementation and completion schedule, including specific milestone dates.
The action plan shall be subject to the approval of IDEM. If the action plan is deemed inadequate by IDEM, a revised action plan shall be submitted within thirty (30) days of receipt of notice from IDEM of the inadequacies thereof. If after submission of the revised documents(s) IDEM still finds that the document(s) are inadequate, then IDEM may require further modification of the action plan 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 or an alternative, adequate action plan is not submitted by the Respondent within thirty (30) days, the Respondent will be subject to stipulated penalties.
The approved action plan shall be incorporated into the Agreed Order and shall be deemed an enforceable part thereof. The Respondent, upon written notification by IDEM, shall immediately implement the approved action plan, and complete the actions contained in the approved action plan in accordance with the schedule included in the approved action plan. Within ten (10) days of completion of each action contained in the approved action plan, the Respondent shall submit notification of completion of the action to IDEM. The notification shall include a description of the action completed, and the date it was completed.
4. All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:
Terry A. Ressler, Enforcement Case Manager
Office of Enforcement
Indiana Department of Environmental Management
100 N. Senate Avenue
P. O. Box 6015
Indianapolis, IN 46206-6015
5. Respondent is assessed a civil penalty of Five Thousand Six Hundred Dollars ($5,600). 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.
6. In the event the terms and conditions of the following paragraphs are violated, the Complainant may assess and the Respondent shall pay a stipulated penalty in the following amount:
Violation
PenaltyParagraph No. 3 $500 per violation of provision contained in its
IWP permit and/or the Town of Wakarusa
SUO during the Performance Period, and
$500 per week for failure to submit an action plan or revised action plan if required to do so, and
$500 per week for failure to timely implement the approved action plan, and complete the actions contained in the approved action plan in accordance with the schedule included in the approved action plan, and
$250 per week for failure to timely submit notification of completion of any action contained in the approved action plan.
7. 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.
8. 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
9. In the event that the civil penalty required by Order paragraph 5, 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.
10. 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.
11. 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.
12. 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.
13. This Agreed Order shall remain in effect until Respondent has complied with all terms and conditions of paragraphs 3 through 9 of this Agreed Order and until IDEM issues a close out letter to Respondent.
TECHNICAL RECOMMENDATION: RESPONDENT:
Department of Environmental Management Utilimaster Corporation
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: ________________________
Office of Legal Counsel
Date: _______________________ Date: ______________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _____ DAY OF ____________________, 2002.
For the Commissioner:
__Signed 6/20/02_____
Felicia A. Robinson
Deputy Commissioner
for Legal Affairs