STATE OF INDIANA            )                       BEFORE THE INDIANA DEPARTMENT

                                                )           SS:       OF ENVIRONMENTAL MANAGEMENT

COUNTY OF MARION        )

 

COMMISSIONER OF THE DEPARTMENT            )

OF ENVIRONMENTAL MANAGEMENT,              )

                                                                                    )

Complainant,                                      )

Case Nos.

2001-11498-W

)

 

2002-11481-W

v.                                          )

 

2002-11482-W

)

 

2002-11484-W

Utility Center, 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.  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 (the “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 Utility Center, Inc. (the “Respondent”), that owns and operates a semipublic wastewater treatment plant (WWTP), located at 2200 West Cook Road, Fort Wayne, Allen County, Indiana, and the associated collection system.  The Respondent provides sanitary sewer services to the following construction projects (the “Sites”): Walgreen's Drugstore; Bridgewater Subdivision, Section V; Bridgewater Subdivision, Section VI; Amber Lake Villas Subdivision, Section II; and Amber Highlands Subdivision.  The Sites are located in Fort Wayne, Allen County, Indiana.

 

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, on August 30, 2002, IDEM issued Notices of Violation (“NOV”) via Certified Mail to Anchor Indiana, Inc., Oakmont Development Co. LLC, Joseph L. Sullivan/Amber Lake Villas Community, Amber Highlands Development Corp., and AquaSource d/b/a Utility Center, Inc., as Co-Respondents.

 

5.            On or before July 31, 2003, Philadelphia Suburban Corporation (“PSC”) purchased the stock of AquaSource Utility, Inc., the corporate parent of, among other systems, Utility Center, Inc.

 

6.            Based upon the discussion of the NOVs issued on August 30, 2002, during the settlement conference between the Respondent and IDEM on September 30, 2002, and submission of information by the Respondent on February 12, 2003, the Respondent requested that IDEM proceed separately with respect to the following Co-Respondents for violations noted herein:

 

OTHER

CO-RESPONDENTS/

CASE Nos.:

VIOLATION LOCATIONS:

Respondent’s

CASE Nos.:

Anchor Indiana, Inc.

2001-10889-W

Walgreen's Drugstore

NW corner of Liberty Mills Rd. & US 24,

Ft. Wayne, Allen Co.

2001-11498-W

Amber Highlands Development Corp. 2002-11162-W

Amber Highlands Subdivision

Located at the intersection of Amber Road and US 24, Ft. Wayne, Allen Co.

2002-11481-W

Joseph L. Sullivan/Amber Lake Villas Community

2002-11161-W

Amber Lake Villas Subdivision, Section II

Located at Amber and Liberty Mill Roads

Ft. Wayne, Allen Co.

2002-11482-W

Oakmont Development Co. LLC

2002-11006-W

Bridgewater Section V

Calais and Rayntham Roads, which are located approximately 1,000 ft. north of Covington Road and 2,000 ft. east of West Hamilton Road

Bridgewater Section VI

Ruffner Road, intersection of Caravelle Drive and Stoneham Cove, Ft. Wayne, Allen Co.

2002-11484-W

 

7.            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.

 

8.            Pursuant to 327 IAC 3-2-2(d), construction shall not commence until all necessary state approvals and permits are obtained.

 

9.            The Respondent issued its tap-in approval permits for Walgreen's Drugstore; Bridgewater Subdivision, Section V; Bridgewater Subdivision, Section VI; Amber Lake Villas Subdivision, Section II; and Amber Highlands Subdivision, prior to IDEM's issuance of a valid construction permit or “as-builts” non-objection letter.  The Respondent was aware that construction commenced or was completed prior to IDEM issuing a valid construction permit or “as-builts” non-objection letter for the sanitary sewer construction, as outlined in the table below:

 

CONSTRUCTION

SITES/CO-

RESPONDENT'S CASE Nos.:

APPLICATIONS

SUBMITTED

TO IDEM:

DATE

CONSTRUCTION

BEGAN:

 

VIOLATION DATES/TAPINS

ISSUED BY RESPONDENT:

IDEM's

AS-BUILT

NON-OBJECTION

LETTERS:

Walgreen's

Drugstore

2001-10889-W

5/7/01 ++

 

On or before

10/1/00

10/27/00

9/21/01

Bridgewater

Subdivision,

Section V

2002-11480-W

9/30/99 ++

7/9/01 *

On or before

2/1/00

3/22/01

2/6/02

Bridgewater

Subdivision,

Section VI

2002-11480-W

7/9/01 *

On or before

3/1/01

1/8/02

2/6/02

Amber Lake Villas Subdivision,

Section II

2002-11484-W

7/9/01 *

On or before 3/1/00

9/19/01

3/5/03 **

Amber Highlands Subdivision

2002-11485-W

7/9/01 *

On or before 10/1/00

11/7/01

1/16/03 ** +

*              Construction Permit applications submitted by the Respondent.

**           Construction Permits issued in December 2001, before IDEM was made aware that sanitary sewer construction had already commenced and/or was complete at the Sites.

+              Developer appealing IDEM's "as-built" non-objection letter.

++           Construction Permit applications submitted by developer.

 

10.        The Respondent allowed the construction/installation of a sanitary sewer when it permitted Anchor Indiana, Inc., Oakmont Development Co. LLC, Joseph L. Sullivan/Amber Lake Villas Community, and Amber Highlands Development Corp., to connect to its sanitary sewer system, without a valid construction permit issued by the commissioner, in violation of 327 IAC 3-2-1 and 327 IAC 3-2-2(d).

 

11.        IDEM issued NOVs to the Respondent for its involvement in sanitary sewer construction projects by Donatello Development & Building Corp., 2002-11480-W; G. F., Inc./Moppert & Company, Inc, 2002-11483-W; and St. Joe Development Corp, 2002-11485-W.  However, on February 12, 2003, Utility Center, Inc. submitted information that demonstrated that it did not allow or cause the sanitary sewer connection to its collection system and/or was not aware that construction commenced or was completed prior to IDEM issuing a construction permit for the sanitary sewer construction in case numbers: 2002-11480-W, 2002-11483-W, and 2002-11485-W.  Therefore, these cases against the Respondent are being dismissed.

 

12.        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 maintain compliance with all applicable requirements of 327 IAC 3, and all other applicable rules and statutes.

 

3.            Upon the Effective Date of the Agreed Order, the Respondent shall implement the compliance plan (“CP”) it has developed and submitted to IDEM, which identifies actions the Respondent shall take to comply with 327 IAC 3-2.  The CP is attached hereto as “Attachment ‘A’” and is hereby incorporated into this Agreed Order and deemed an enforceable part thereof.

 

4.            The Respondent is assessed a civil penalty of Twenty Thousand Dollars ($20,000).  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.

 

5.            The civil penalty is payable by check to the Environmental Management Special Fund.  Payment shall include Case Numbers: 2001-11498-W, 2002-11481-W, 2002-11482-W, and 2002-11484-W, of this action and shall be mailed to:

 

                                                Cashier

            IDEM

            100 N. Senate Avenue

            P. O. Box 7060

            Indianapolis, IN 46207-7060

 

6.            In the event that the civil penalty required by Order Paragraph 4 is not paid within 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.

 

7.            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 their status or responsibilities under this Agreed Order.

 

8.            Upon the Effective Date of this Agreed Order, IDEM dismisses the NOVs naming AquaSource as the Co-Respondent in the cases of:

 

                        Donatello Development & Building Corp., 2002-11480-W;

                        G. F., Inc. /Moppert & Company, Inc, 2002-11483-W; and

                        St. Joe Development Corp, 2002-11485-W.

 

9.            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.

 

10.        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 construction permits or with any other applicable federal or state law or regulation.

 

11.        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 are aware of the terms of this Agreed Order.

 

12.        This Agreed Order shall remain in effect until the Respondent has complied with Paragraphs 3 through 6 of this Agreed Order and IDEM has issued a close-out letter to the Respondent.

TECHNICAL RECOMMENDATION:                       RESPONDENT:

Department of Environmental Management                    Utility Center, Inc.

 

By: _________________________                            By: __________________________

            Mark W. Stanifer, Chief

            Water Enforcement Section                              Printed: Terry Rakocy,             

            Office of Enforcement

                                                                                    Title: President-Aqua Indiana Inc.         

 

 

Date: ________________________                           Date:                                                   

 

 

 

COUNSEL FOR COMPLAINANT:                           COUNSEL FOR RESPONDENT:

Department of Environmental Management

 

By: _________________________                            By:                                                      

            Mary Ann Habeeb, Attorney

            Office of Legal Counsel                                    Printed:                                                

 

 

Date: _______________________                             Date:                                                   

 

 

 

 

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS __27th ___ DAY OF _October____, 2004.

 

 

For the Commissioner:

 

 

 

 

By: Felicia A. Robinson           

Felicia A. Robinson

Deputy Commissioner

for Legal Affairs

ATTACHMENT A

 

COMPLIANCE PLAN

UTILITY CENTER, INC.

SANITARY SEWER CONNECTION REQUIREMENTS

 

 

            Pursuant to this Agreed Order, the Respondent shall:

 

1.                  Not allow connection to its sanitary sewer system or wastewater treatment plant (WWTP) of any new sewer line without the developer first obtaining a construction permit from IDEM under 327 IAC 3 (the “Permit”).

 

2.                  Require developers, prior to connecting to the Respondent’s sanitary sewer system and WWTP, to do the following:

 

A.        File a copy of IDEM’s approved Permit with the Respondent.

 

B.         Provide a list of service addresses to the Respondent.

 

C.        Provide a list of service locations to the Respondent.

 

3.         Upon Completion of items 2.A. through 2.C. above, the Respondent is required to do the following:

 

A.                 Conduct on-site inspections by a qualified person of sanitary sewer construction projects.

 

B.                 Document the inspections and their results in a log maintained for documentation and review purposes.  The Respondent shall maintain the log so that it is available for review by IDEM for each sanitary sewer construction project in its service area.  Information in the log shall include, but not necessarily be limited to the following:

 

i.                 date and time of inspection(s),

ii.               results/observations found during the inspection(s), and

iii.              any corrective measures it recommends as a result of deficiencies found during the inspection(s).