) SS: OF ENVIRONMENTAL MANAGEMENT
COMMISSIONER OF THE DEPARTMENT )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
)
v. )
)
REGIONAL UTILITIES, )
)
Respondent. )
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.
I. FINDINGS OF FACT
1. Complainant is
the Commissioner (hereinafter referred to as "Complainant") of the
Indiana Department of Environmental Management, a department of the State of
2. The Respondent is the Jennings
Northwest Regional Utilities (“Respondent”).
The unsewered, unincorporated Town of
3. The
4. Pursuant to IC
13-30-3-3, IDEM issued a Notice of Violation via Certified Mail to:
Mr. Jeffrey S. Day, President
(Case
No. 2003-12649-W)
and
Mr.
Edwin Whitaker, President
3847
Country Manor West
(Case
No. 2003-13341-W)
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 Indiana Code IC 13-18-4-5, it is unlawful for any person to throw, run, drain, or otherwise dispose into any of the streams or waters of the state, or to cause, permit or suffer to be thrown, run, drained, allowed to seep, or otherwise disposed into any waters any organic or inorganic matter that shall cause or contribute to a polluted condition of any waters, as determined by a rule of the board adopted under IC 13-18-4-1 and IC 13-18-4-3.
7. Pursuant to 327 IAC
8. Pursuant to 327 IAC 2-1-6(a)(1), 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:
(A) that will settle to form putrescent or otherwise objectionable deposits;
(B) that are in amounts sufficient to be unsightly or deleterious;
(C) that produce color, visible oil sheen, odor, or other conditions in such degree as to create a nuisance;
(D) which are in amounts sufficient to be acutely toxic to, or to otherwise severely injure or kill aquatic life, other animals, plants or humans…; and
(E) which are in concentrations or combinations that will
cause or contribute to the growth of aquatic plants or algae to such a degree as to create a nuisance, be
unsightly, or otherwise impair the designated uses.
9. An investigation by IDEM, which
included a review of IDEM records, including photographs on January 15, 2003,
of sewage in ditches in the Hayden community and the results of samples
obtained in June 2002 of local ditches which drain into Six Mile Creek,
indicate that the unincorporated town of Hayden, and thereby the Respondent,
discharged untreated sewage into waters of the state, without an NPDES Permit,
in violation of IC 13-30-2-1, IC 13-18-4-5 and 327 IAC 5-2-2. The investigation further indicates that the
discharges cause the receiving waters to contain E. coli bacteria
concentrations in amounts sufficient to be deleterious, in violation of 327
IAC
10. In a correspondence dated
11. In a correspondence dated
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 comply with IC 13-30-2-1, IC
13-18-4-5, 327 IAC
and
327 IAC
3. The Compliance Plan referenced in Paragraph 10 above (which is attached to this Agreed Order as “Attachment 1”) is hereby approved and incorporated into this Agreed Order and deemed an enforceable part thereof. The Respondent shall immediately implement the Compliance Plan, and adhere to the milestone dates contained therein. Beginning on the Effective Date of this Agreed Order, the Respondent shall submit progress reports every six months indicating the status of the implementation of the Compliance Plan.
4.
Upon completion of the approved Compliance Plan pursuant to Order
Paragraph
3 above, the Respondent shall be subject to the stipulated penalties provided for in Order Paragraph 10 below for any continuing violations.
5. The Respondent shall, within six months of completion of the Compliance Plan required by Paragraph 3 above (Performance Period), demonstrate five consecutive months of compliance (Compliance Demonstration) of no continuing unauthorized discharges.
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, an “Action Plan” that identifies the additional actions that the Respondent will take to comply with all applicable environmental regulations. The Action Plan, if required, shall include an implementation and completion schedule, including specific milestone dates.
6. The Action Plan described in Order Paragraph 5 above is subject to IDEM approval if development of an Action Plan becomes necessary. If IDEM deems a plan to be 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 do 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.
7. The plan required pursuant to Order
Paragraph 5 above shall, upon approval by IDEM, be incorporated into this
Agreed Order and shall be deemed an enforceable part thereof. The Respondent, upon receipt of written
approval from IDEM, shall immediately implement the approved plan and adhere to
the milestone dates contained therein.
8. The Respondent shall notify IDEM, in
writing, within 10 days of completion of
each action
contained in any approved plan. The
notification shall include a description of the action completed and the date
it was completed.
9. All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:
Paul Cluxton, Case Manager, Water Section
Office of Enforcement
Indiana Department of Environmental Management
10. In the event the terms and conditions of the following Order paragraphs are violated, 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 comply with the milestones of the approved Compliance Plan |
$500 per each week |
|
4 |
Failure to cease unauthorized discharges subsequent to completion of the Compliance Plan |
$1000 per violation |
|
5 |
Failure to timely submit the Action Plan |
$250 per each week |
|
6 |
Failure to timely revise and resubmit any plan |
$250 per each week |
|
7 |
Failure to meet any milestone date set forth in any approved Action plan |
$500 per each week |
|
8 |
Failure to timely submit notification to IDEM of compliance with the milestones of the approved Compliance Plan or any approved Action Plan |
$250 per each week |
11. Stipulated
penalties shall be due and payable within 30 days after the 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 the Respondent’s violation of this Agreed Order, or
12. 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:
Indiana Department of Environmental Management
13. In the event that any stipulated penalty amount assessed pursuant to Paragraphs 10 and 11 is not paid within 30 days of receipt of notice that it is due, 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 penalty is paid in full.
14. This Agreed Order shall apply to and be binding upon the Respondent, their 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 party 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.
15. 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.
16. 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 comply with the terms of this Agreed Order.
17. 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 any applicable requirements of federal or state law or regulation.
18. This Agreed Order is not and shall not be interpreted to be a Permit, nor shall it in any way relieve the Respondent of their obligation to comply with the applicable requirements of federal or state law or regulation.
19. This Agreed Order shall remain in effect until the Respondent has complied with all terms and conditions of Agreed Order Paragraphs 3 through 13 and IDEM issues a close-out letter to the Respondent.
Remainder of Page Left Blank Intentionally
TECHNICAL RECOMMENDATION: RESPONDENT:
2003-13341-W
Section Chief, Water Section Printed: _____________ __ ______
Title: President
Date: _______________________________ Date: ______________________________
COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:
Department of Environmental Management
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _______________ DAY OF __________________________, 2004.
For The Commissioner:
___(Signed 8/19/04)___________
Felicia A. Robinson
Deputy Commissioner for Legal Affairs