COMMISSIONER OF THE DEPARTMENT )

OF ENVIRONMENTAL MANAGEMENT, )

)

and )

)

Evergreen Communities, LLC, )

)

1. IDEM is currently pursuing settlement of the violations against the Anoka Corporation ("previous owner and permittee"), Case No. 2001-11249-W, separately due to the business' standing, lack of ownership status, and lack of operation control for the Site.
2. Pursuant to IC 13-30-3-3, IDEM will issue future offers to enter into an Agreed Order to the Respondents as addressed below:

Mr. Julio Jaramillo Anoka Acres MHC, LLC Evergreen Communities, LLC Anoka Acres Mobile Home Park 1518 N. Avon Street Burbank, CA 91505

Ms. Casey Collins, Registered Agent Evergreen Communities, LLC Anoka Acres Mobile Home Park 1518 N. Avon Street Burbank, CA 91505

Mr. Dennis Sutton, Registered Agent Anoka Acres MHC, LLC Anoka Acres Mobile Home Park 200 E. Main Street, Suite 1000 Fort Wayne, IN 46802

6. A representative of IDEM's Office of Water Quality ("OWQ") conducted an on-site investigation on April 24, 2001. The violations in existence or observed at the time of the investigation or revealed during subsequent record reviews are included on a factual basis in the following paragraphs.

1. Record reviews based on the investigation conducted on April 24, 2001 revealed that the WWTP experienced washouts during 1999 and 2000, which effected the previous owner's compliance efforts and impacted the TSS and CBOD₅ results. These washouts also effected the amount of sludge in the unlined terminal lagoon.
2. Anoka Corporation's DMR forms submitted to IDEM for the WWTP NPDES discharge, including but not limited to August 2000 through October 2002, contained the following statement at the foot of each month's reporting form: "The lining of the terminal lagoon needs to be initiated as soon as possible. If construction is not necessary to meet the new limits for ammonia-nitrogen, dissolved oxygen, or final total residual chlorine, please notify Compliance Evaluation Section of IDEM."
3. An inspection conducted by an IDEM representative on October 27, 2000, stated that the effluent appeared to have excessive solids and that sludge needed to be wasted from the WWTP. Specifically, the report stated that the accumulated waste needed to be removed from the terminal lagoon.
4. The inspection conducted by an IDEM representative on April 24, 2001, indicated that the Anoka Corporation prior to October 25, 2002, was not in compliance with its Schedule of Compliance in Part I.D of the permit.
5. As a result of the findings from the investigation conducted on April 24, 2001, Anoka Corporation's representatives requested an extension to the Permit's Compliance Schedule in a letter dated August 22, 2001. The extension request expressed the previous owner's desire to schedule a meeting with IDEM to discuss its inability to complete construction and/or meet the permit effluent limits, according to the implementation deadlines of the Schedule of Compliance in Part I.D of the permit.
6. Anoka Corporation's NPDES permit Schedule of Compliance expired at the end of the 36-month period on September 1, 2001.
7. Representatives of IDEM and representatives of the Anoka Corporation held a meeting on December 17, 2001. The discussion focused on the construction status, necessary lagoon lining, and the required future construction of a discreet outfall in order for the WWTP to meet permit conditions, sampling requirements, and final effluent limits.
8. Anoka Acres MHC, LLC purchased the Anoka Acres MHP and WWTP property/asset ("asset") from the Anoka Corporation on October 25, 2002. The Respondents' representatives were aware of the WWTP's general compliance violations prior to and during the sale of the Anoka Acres MHP asset; therefore, the Respondents were aware of the construction necessary to return the WWTP to regulatory compliance prior to the acquisition of the asset.
9. Representatives of IDEM, the Anoka Corporation, and the Respondents corresponded via telephone, letters, and facsimile transmissions following the sale of the asset. Documents from the Anoka Corporation and from the Respondents' management verified the sale of the asset, including but not limited to the current MHP site management members, certified operator identification, contact information, and emergency contact personnel.
10. 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 Respondents' entry into this Agreed Order shall not constitute a waiver of any defense, legal or equitable, which the Respondents may have in any future administrative or judicial proceeding, except a proceeding to enforce this Order.
11. In recognition of the settlement reached, the Respondents waive any right to administrative and judicial review of this Agreed 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.

1. Within 60 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 the Respondent has performed and will continue to perform to achieve and maintain compliance with its NPDES Permit, specifically including the following actions:

1. Perform the elements of the expired Schedule of Compliance, in order to establish the treatment requirements and water quality standards necessary to comply with the final effluent limits.

1. Submit a written description of the determination of the method(s) selected for meeting the required effluent limits requirements, including but not limited to WWTP installation, construction, and/or adequate repairs. Required elements of the CP shall include lining of the terminal lagoon, and construction/installation of a pipeline for discharging treated domestic wastewater into Minnow Creek at Outfall 001.
2. Notify OWQ's Facility Construction Section of the NPDES Permits Branch, of the Respondents' determination whether or not to proceed with construction or repairs for the WWTP, as it is the Respondents' responsibility to obtain all the required permits prior to commencing construction.
3. Submit implementation and completion schedules for the described installation, construction, and/or repairs of the WWTP no later than 30 days after the determination is submitted as required in Paragraph 3.a.i above.
4. Submit a written progress report to OWQ's Compliance Evaluation Section once installation, construction, and/or repairs are commenced, regarding the progress of the WWTP installation, construction, and/or repairs within 180 days of the commencement thereof.
5. Complete installation, construction, and/or adequate repairs for the requirements of Paragraph 3.a. by December 31, 2004.

1. Perform all necessary monitoring and reporting for all required operations and maintenance of the WWTP. Prevent further contamination of the waters of the state from any accumulation of sludge from the WWTP, including but not limited to, any sludge deposited into Minnow Creek from a build up of lagoon sludge or from washouts due to elevated terminal lagoon volume.
2. Achieve continuous compliance with all flow monitoring and reporting requirements contained in the permit, including the installation or repair of any and all necessary equipment.
3. Achieve and maintain continuous compliance with all final effluent limitations contained in the permit. Evaluate and implement means to consistently meet the CBOD₅, NH₃-N, DO, TRC, TSS effluent limits, and disinfection requirements.
4. Achieve and maintain the required disinfection and/or dechlorination based on the permitted and/or designed method of effluent treatment.
5. Assure proper removal, storage and disposal of accumulated sludge solids from the terminal lagoon, without runoff entering waters of the state, in accordance with 327 IAC 7.1-4-11 and 327 IAC 7.1-7.
6. Prevent the release of sludge from the WWTP to waters of the state. Perform all operations and maintenance ("O&M") measures necessary to prevent effluent violations and/or unauthorized discharges from impacting waters of the State.

1. The Respondents shall, within six months of completion of the CP required by Paragraph 3 above ("Performance Period"), demonstrate a period of five consecutive months of compliance with the Permit ("Compliance Demonstration"), including but not limited to prevention of effluent discharge violations. During the Performance Period the Respondents shall be subject to stipulated penalties, as specified below. Within 60 days of the date that the Respondents fail to achieve the Compliance Demonstration or they becomes aware that they will not be able to achieve the Compliance Demonstration within the Performance Period, they shall develop and submit to IDEM, for approval, a plan which identifies the additional actions that the Respondents will take to eliminate violations from the Site. This "Additional Action Plan" ("AAP"), if required, shall include a new implementation and completion schedule, including specific milestone dates.
2. The plans required by Paragraphs 3 and 4 above are subject to IDEM approval. If IDEM deems any 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 plan, IDEM still finds the plan 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 Respondent does not submit a third revised plan that incorporates the IDEM-suggested modifications or submit an alternative adequate plan (as determined by IDEM), the IDEM-suggested modifications will be deemed incorporated into the plan.

1. Within 30 days of the Effective Date of this Agreed Order, the Respondents shall determine whether they have sufficient legal authority to:

1. implement and enforce sewer use ordinances, service agreements and/or other legally binding documents;
2. require that all sewers and connections be properly designed and constructed;
3. test and inspect all new and rehabilitated sewers, including both collector sewers and service laterals;
4. regulate flows from satellite collection systems (if any); and
5. prohibit the connection or introduction of stormwater sources to the collection system

1. Following the completion of each major phase in the IDEM-approved CP, in accordance with the scheduled milestone dates contained therein, the Respondents shall demonstrate that the projects completed during each phase have achieved the objectives of that particular phase. (For example, it is anticipated that the Respondents shall adequately repair the WWTP as planned and meet all effluent parameters contained in the permit upon completion of the projects outlined in the CP).

1. Beginning on the Effective Date of this Agreed Order and continuing through the completion of the CP provided for by Paragraph 3 above, the Respondents shall, at all times, operate the existing WWTP as efficiently and effectively as possible, and shall be subject to stipulated penalties for their failure to comply with permit limitations.
2. Within 10 days of the completion of the milestone dates above, the Respondents shall submit documentation of the completion for each milestone date, to OE as addressed in Paragraph 10.
3. All of IDEM's OE 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

100 North Senate Avenue

P.O. Box 6015

Indianapolis, IN 46206-6015

4. 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:

 

 

Order Paragraph Cited	Violation	Penalty due per violation
3	Failure to protect waters of the State from excessive pollutants and/or unauthorized discharges.	$1000 per event
3	Failure to timely submit complete DMRs, and/or failure to timely report bypass/overflow events.	$500 per reporting violation
3	Failure to operate the existing wastewater collection and treatment system as efficiently and effectively as possible.	$250 per each month, or part thereof, late
3	Failure to submit the CP, as required, within the given time period.	$250 per each week, or part thereof, late
3	Failure to submit any necessary and/or required construction plans for the WWTP, prior to commencing construction.	$1000 per unpermitted construction event
4	Failure to meet conditions of the Performance Period, within the given time period.	$500 per each month, or part thereof, late
4	Sanitary sewer overflow events that occur during the Performance Period.	$1000 for each event
4-5	Failure to prevent, or to the extent prevention is not possible, to minimize, the discharge from any overflow or bypass point present in the sewer system or at the wastewater treatment facility prior to and/or during the Performance Period.	$1000 for each event
4-5	Failure to demonstrate 5 consecutive months of compliance or failure to notify IDEM of inability to comply, within the given time period.	$500 per each month, or part thereof, late
4-5	Failure to submit the Additional Action Plan, if required, within the given time period.	$250 per each week, or part thereof, late
5	Failure to submit or resubmit a revised CP or Additional Action Plan, if required, within the given time period.	$250 per each week, or part thereof, late
5	Failure to meet any milestone date set forth in the approved CP or Additional Action Plan.	$500 per each week, or part thereof, late
6	Failure to demonstrate, within the given time period, that Respondent has the necessary legal authority.	$250 per each week, or part thereof, late
6	Failure to timely submit certification statement	$250 per each week, or part thereof, late
7	Failure to submit project results within 60 days of the milestone date.	$500 per each week, or part thereof, late
8	Failure to implement and maintain all necessary and required O&M measures, in accordance with the Permit.	$250 for each documented deficiency


 
8. Stipulated penalties shall be 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 Respondent for any 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 Respondent's violation of this Agreed Order, or Indiana law, including but not limited to civil penalties pursuant to IC 13-30-4.
9. 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

10. This Agreed Order shall apply to and be binding upon the Respondents, including but not limited to, their officers, directors, principals, agents, successors, subsidiaries, and assigns. The Respondents' signatories to this Agreed Order certify that they are fully authorized to execute this document and legally bind the party or 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.
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 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.
13. 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 the Respondents of their obligation to comply with the requirements of their NPDES Permit or with any other applicable federal or state law or regulation.
14. The Complainant does not, by its approval of this Agreed Order, warrant or aver in any manner that the Respondents' compliance with any aspect of this Agreed Order will result in compliance with the provisions of the Clean Water Act, their Permit, or state law.
15. This Agreed Order shall remain in effect until IDEM issues a close-out letter to the Respondents and until the Respondents comply with the terms of Order Paragraph Nos. 3 through 13.

Evergreen Communities, LLC, Manager

By: ______________________________ By: ______________________________

Mark W. Stanifer

COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:

Department of Environmental Management

By: ______________________________ By: ______________________________

Mary Ann Habeeb, Section Chief

Office of Legal Counsel Title: ______________________________

Date: ______________________________ Date: ______________________________
 
 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS __________ DAY OF __________________________, 200___.