STATE OF
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BEFORE THE INDIANA DEPARTMENT
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OF ENVIRONMENTAL MANAGEMENT
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COMMISSIONER OF THE DEPARTMENT |
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OF ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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v. |
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CASE NO. 2002-11272-W |
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RODERICK AND SUE DICKERSON, |
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d/b/a Custom Real Estate Service, |
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d/b/a RS HOME SALES, |
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Respondents. |
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The Complainant and the Respondents 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 Indiana Code (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 Respondent may have in any future administrative or judicial proceeding, except a proceeding to enforce this Order.
I. FINDINGS
OF FACT
1. The
Complainant is the Commissioner (Complainant) of the Indiana Department of
Environmental Management, a department of the State of
2. The
Respondents are Roderick and Sue Dickerson (Respondents), property owners
and/or developers of the Dickerson Addition (d/b/a Custom Real Estate Service,
d/b/a RS Home Sales), who own and operate the sewerage collection system that
serves approximately 70 residential lots within the Dickerson Addition (the
Site). The Site is located approximately one mile east of the community of
3. The Respondents own and operate the sewerage collection system (the collection system), which is approximately 2,600 linear feet of 8-inch diameter sanitary sewer lines, consisting of 2 lift stations on separate force mains connecting the Site to an existing force main located on the north side of State Road 250, approximately one mile east of East Enterprise, in Switzerland County, Indiana.
4. Based on the information provided by the Respondents for the construction permit issued on April 21, 1999 (Construction Permit No. 12736), the Site’s collection system is identified as connected to the sewer main on the north side of State Road 250, which carries wastewater for treatment to the East Enterprise Regional Sewer District (RSD) wastewater treatment plant (WWTP), located at 37 Murray Lane West, in Bennington, Switzerland County, Indiana.
5. The Indiana Department of Environmental Management (IDEM) has jurisdiction over the parties and subject matter of this action.
6.
Pursuant to IC 13-30-3-3, on
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Roderick and Sue Dickerson Dickerson Addition d/b/a RS Home Sales |
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Roderick and Sue Dickerson d/b/a Custom Real Estate Service Rising Sun, IN 47040 |
7.
On-site investigations were conducted on
8.
Pursuant to 327 Indiana Administrative Code (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.
9.
Pursuant to IC 13-30-2-1(2), a person may not increase the quantity or
strength of a discharge of contaminants into the waters or construct or install
a sewer or sewage treatment facility or a new outlet for contaminants into the
waters of Indiana without prior approval of the department.
10.
Pursuant to IC 13-30-2-1(7), a person may not construct, install,
operate, conduct, or modify, without prior approval of the department, any
equipment or facility of any type that may:
a.
cause or contribute to pollution; or
b.
be designed to prevent pollution.
11.
Pursuant to Construction Permit Approval No. 12736, Part II, Item 1, no
significant or material changes in the scope of the plans or construction of
the permitted project shall be made unless the following provisions are met:
a.
the request for permit modification is made 60 days in advance of the
proposed significant or material changes in the scope of the plans or
construction;
b.
the permittee submits a detailed statement of such proposed changes;
c.
the permittee submits revised plans and specifications, including a
revised design summary; and
d.
the permittee has obtained a revised construction permit from IDEM.
The Respondents allowed significant or material changes in the scope of
the plans or construction of the sanitary sewers to connect the Site to the
East Enterprise RSD system without first obtaining IDEM’s approval, in
violation of 327 IAC 3-2-1, IC 13-30-2-1(2 and 7), and Construction Permit
Approval No. 12736, Part II, Item 1.
12.
Pursuant to 327 IAC
The Respondents’ Site was observed to be discharging
untreated domestic wastewater from one or both lift stations within their
collection system into a ditch on
13. Pursuant to 327 IAC 2-6.1-4(15), a "spill" is defined as any unexpected, unintended, abnormal, or unapproved dumping, leakage, drainage, seepage, discharge or other loss of petroleum, hazardous and/or otherwise objectionable substance.
14. Pursuant to 327 IAC 2-6.1-5, a spill that damages the waters of the state so as to cause death or acute illness to humans or animals, a spill of an objectionable substance to surface waters, or a spill for which a spill response has not been done is a reportable spill.
15. Pursuant to 327 IAC 2-6.1-7, any person who operates, controls, or maintains any facility from which a spill occurs shall, upon discovery of a spill, do the following:
a. Contain the spill, if possible, to prevent additional spilled material from entering the waters of the state.
b. Undertake or cause others to undertake activities needed to accomplish a spill response.
c. As soon as possible, but within two hours of discovery, communicate a spill report to the Department of Environmental Management.
d. Submit to the Department of Environmental Management a written copy of the spill report if requested in writing by the department.
e. Except from modes of transportation other than pipelines, exercise due diligence and document attempts to notify the following:
i.
For spills to surface water that cause
damage, the nearest affected downstream water user located within 10 miles of
the spill and in the state of
ii. For spills to soil outside the facility boundary, the affected property owner or owners, operator or operators, or occupant or occupants.
Based on investigations conducted
by IDEM’s OWQ, the Respondents discharged untreated domestic wastewater from
one or both lift stations within their collection system into a ditch within
the Marble Branch of the Grants Creek watershed on
The Respondents failed to contain these spills and to prevent the pollutants contained therein from entering the ditch; and/or failed to undertake or cause others to undertake activities needed to accomplish a spill response; and/or failed to communicate a spill report to the Department of Environmental Management within 2 hours of discovery; and/or failed to notify the nearest affected downstream water user located within 10 miles of the spill and in the state of Indiana (these actions collectively constitute a spill response), in violation of 327 IAC 2-6.1-7.
16. 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 or emission requirements adopted by the appropriate board under the environmental management laws.
17.
Pursuant
to 327 IAC
a. All 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:
i. that will settle to form putrescent or otherwise objectionable deposits;
ii. that are in amounts sufficient to be unsightly or deleterious;
iii. that produce color, visible oil sheen, odor, or other conditions in such degree as to create a nuisance;
iv. which are in amounts sufficient to be acutely toxic to, or to otherwise severely injure or kill aquatic life, other animals, plants or humans.
v. which are in concentrations or combinations that will cause or contribute to the growth of aquatic plants or algae to such degree as to create a nuisance, be unsightly, or otherwise impair the designated uses.
The Respondents discharged untreated domestic wastewater from one or
both of the lift stations within their collection system into a ditch within
the Marble Branch of the Grants Creek watershed on February 5, 2002, May 16,
2002, and March 20, 2003, in violation of 327 IAC 2-1-6(a)(1)
(a rule of the Water Pollution Control Board) thus in violation of IC
13-30-2-1.
18.
On
IDEM’s
representatives observed and photographed evidence of unauthorized discharges
from both of the lift stations on
19. Representatives of IDEM and the Respondents conducted a Settlement Conference via telephone on Monday, February 16, 2004, at which time the Notice of Violation (NOV) issued on December 17, 2003, and the proposed Agreed Order were discussed.
20. In recognition of the settlement reached, the Respondents waive 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 Respondents. This Agreed Order shall have no force or effect until the Effective Date.
2. The Respondents shall comply with all applicable provisions of the Indiana Code (IC) and the Indiana Administrative Code (IAC), including but not limited to 327 IAC 5-2-2, 327 IAC 2-1-6(a)(1), 327 IAC 2-6.1-7, 327 IAC 3-2-1, and IC 13-30-2-1(1).
3. Within 90 days of the Effective Date of this Agreed Order, the Respondents shall develop and submit to IDEM for approval a Compliance Plan (CP) which identifies actions that Respondents will take to achieve and maintain compliance with 327 IAC 5-2-2, 327 IAC 2-1-6(a)(1), 327 IAC 2-6.1-7, IC 13-30-2-1(1), specifically including the actions the Respondents will take to:
a. Assure proper removal and disposal of the untreated process wastewater, if it is determined to be necessary, according to all applicable provisions of the rules and statutes without runoff into waters of the state;
b. Develop and implement an operation and maintenance (O&M) program for the Respondents’ collection system
c. Develop and implement a training program for the Respondents’ employee(s) on how to comply with 327 IAC 2-6.1.
The Compliance Plan shall include an implementation and completion schedule, including specific milestone dates.
4. If the Respondents choose to pursue the option of obtaining an NPDES permit as part of its CP, then the Respondents shall within six months of completion of the CP required by Paragraph 3 above (the Performance Period), demonstrate five consecutive months of compliance (the Compliance Demonstration) with the minimum water quality standards. During the Performance Period, the Respondents shall be subject to stipulated penalties, as specified below, for unauthorized discharges and violations of the minimum water quality standards. In the event that the Respondents fail to make the Compliance Demonstration, the Respondents shall, within 60 days of becoming aware that the Compliance Demonstration cannot be achieved, develop and submit to IDEM, for approval, an “Additional Action Plan” which identifies the additional actions that the Respondents will take to achieve and maintain compliance with the minimum water quality standards. The Additional Action Plan, if required, shall include an implementation and completion schedule, including specific milestone dates.
5. The plans required by Paragraphs 3 and 4 above are subject to IDEM approval. If IDEM deems a plan inadequate, a revised plan shall be submitted within 15 days of receipt of notice from IDEM of the inadequacies thereof. If, after submission of the first revised document, IDEM still finds the document to be inadequate, then IDEM will request further modification of the plan as necessary to meet IDEM’s requirements, and require re-submittal of the plan by a specific date. If the subsequently submitted second revised plan does not meet IDEM’s approval, IDEM will suggest specific modifications to be made to the plan and require re-submittal by a specific date. If, by the specified date, the Respondents do not incorporate the IDEM-suggested modifications into the third revised plan or submit an alternative adequate plan (as determined by IDEM), the Respondents will be subject to stipulated penalties as described below. The Respondents, upon receipt of written notification from IDEM, shall immediately implement the approved plan and adhere to the milestone dates therein. The approved Compliance Plan and Additional Action Plan shall be incorporated into the Agreed Order and shall be deemed an enforceable part thereof. Failure to achieve compliance at the conclusion of work under an Additional Action Plan will subject the Respondents to additional enforcement action.
6. Beginning on the Effective Date of this Agreed Order and continuing until the completion of the Compliance Plan provided for by Paragraphs 3, 4, and 5 above, the Respondents shall have no further spills or unpermitted discharges, and shall be subject to stipulated penalties for spilling or discharging wastewater into state waters without authorization.
7. All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:
Ms. Stacie Tucker, Environmental Manager
Office of Enforcement
Indiana Department of Environmental Management
8. The Respondents are jointly and severally assessed a civil penalty of Eight Thousand Five Hundred and Twenty-five Dollars ($8,525). 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.
9. In the event the terms and conditions of the following Order paragraphs are violated, the Complainant may assess and the Respondents shall jointly and severally pay a stipulated penalty in the following amount:
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Order Paragraph Number |
Violation
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Penalty Amount |
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3, 5 |
Failure to submit or modify the CP, as required, within the given time period. |
$250 per each week or part thereof late |
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4, 5 |
Failure to submit or modify the Additional Action Plan, if required, within the given time period. |
$250 per each week or part thereof late |
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Failure to meet any milestone date set forth in the approved CP. |
$500 per each week or part thereof late |
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Unauthorized discharge or spill of pollutant from the collection system |
$2,500 per day of discharge |
10. Stipulated
penalties shall be jointly and severally due and payable within 30 days after
the Respondents receive 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 Respondents 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 Respondents' violation of this Agreed
Order, or
11. Civil and stipulated penalties are jointly and severally payable by check to the Environmental Management Special Fund. Checks shall include the Case Number (2002-11272-W) of this action and shall be mailed to:
Indiana Department of Environmental Management
12. In the event that the civil penalty required by Order Paragraph 8, is not paid within 30 days of the Effective Date of this Agreed Order, the Respondents shall jointly and severally 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.
13. This Agreed Order shall apply to and be binding upon the Respondents, their successors, and assigns. The Respondents' 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 Respondents shall in any way alter their status or responsibilities under this Agreed Order.
14. 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.
15. The Respondents shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights are transferred. The Respondents shall ensure that all contractors, firms and other persons performing work under this Agreed Order comply with the terms of this Agreed Order.
16. This Agreed Order shall remain in effect until the Respondents comply with the terms of Order Paragraph Nos. 3 through 12, and until IDEM issues a Close-Out letter to the Respondents.
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TECHNICAL
RECOMMENDATION: |
RESPONDENTS: |
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Department
of Environmental Management
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Roderick
(Rod) Dickerson
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By:
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By:
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Mark
W. Stanifer
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Printed: |
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Section Chief, Water Section |
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Office
of Enforcement
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Sue
Dickerson
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By:
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______________________________
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_____________________________
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Title:
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COUNSEL FOR
COMPLAINANT: |
COUNSEL FOR
RESPONDENTS: |
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Department of Environmental Management |
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By:
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By:
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Joseph
Merrick, Attorney
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Office
of Legal Counsel
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Date:
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Date:
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______________________________
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APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _______________ DAY OF __________________________, 200__.
For The Commissioner:
Original signed on
Felicia A. Robinson
Deputy Commissioner
for Legal Affairs