)
SS:
OF ENVIRONMENTAL MANAGEMENT
COMMISSIONER OF THE
DEPARTMENT
)
OF ENVIRONMENTAL
MANAGEMENT,
)
)
Complainant,
)
)
v.
)
Case No. 2003-13516-W
)
RONALD J. MIDDLETON,
)
)
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.
I. FINDINGS OF
FACT
1.
Complainant is the Commissioner (AComplainant@) of the Indiana Department
of Environmental Management, a department of the State of
2.
Respondent is the Ronald J. Middleton (ARespondent@), who has been issued a
Class II Wastewater Treatment Plant Operator Certification No. 2346 on July 1,
1971 and a Class A Wastewater Treatment Plant Operator Certification No. 13633
on March 6, 1997, in accordance with 320 IAC 3-10.1 subsequently recodifed as
327 IAC 5-22. These wastewater
operator certifications were last renewed by IDEM on
3.
The Respondent was issued Water Distribution Operator's Certificate Grade
DSL No. 791551 on June 30, 1979, Water Treatment Plant Operator's Certificate
Grade WT5 No. 813441 (formerly an AT certification) on November 13, 1981, and
Water Treatment Plant Operator's Certificate Grade WT3 No. 013339 on October 22,
2001. IDEM last renewed these water distribution and water treatment
certifications on
4.
The
5.
Pursuant to IC 13-30-3-3, on
Ronald J.
Middleton
RJ Middleton
& Associates, Inc.
6.
The Respondent is employed as the wastewater treatment plant certified
operator by the Town of
7.
The Respondent, as certified operator for the Town of
8.
Based on an investigation by designated representatives of IDEM, the
Respondent's actions at the Town of
A.
Pursuant
to IC 13-18-11-14, it is unlawful for any person, firm or corporation, both
municipal and private, to operate a water or wastewater treatment plant or a
water distribution system unless the operator in responsible charge is duly
certified to by the commissioner under the provisions of this chapter. Furthermore, it shall be unlawful for
any person to perform the duties of an operator in responsible charge of such
works as defined herein without being duly certified under the provisions of
this chapter.
B.
Pursuant to 327 IAC 5-22, in order to work at a wastewater treatment
plant in the capacity of a wastewater treatment operator, the person is required
to have qualifications as established in 327 IAC 5-22. Pursuant to 327 IAC 5-22, among the
requirements to operate a Class II wastewater treatment plant is for the
operator to have at least a Class II operator certification from IDEM.
C.
Pursuant to 327 IAC
D.
Pursuant to Part II.A.14 of the Permit, the Town of
E.
Pursuant to Part II.B.1.b of the Permit, the Town of
F.
Pursuant to 327 IAC
G. IDEM
records indicate that the Respondent performed the duties of an
operator in responsible charge of the Town of
H.
Monitoring reports for the Town of Sunman's WWTP that were submitted by
the Town of Sunman for the months from July 2002 through April 2003, indicate
that the monitoring reports, including the DMRs, were prepared by or under the
Respondent's direction.
I.
As noted in letters sent to the Respondent on June 24, 2002 and May 1,
2003, the Respondent's operator certifications (Class A wastewater operator
certification No. 13633, and Class II wastewater operator certification No.
2346) expired on June 30, 2002, and were not renewed until May 8, 2003, after
IDEM received the required renewal fee and documentation that the Respondent
completed the required continuing education credit hours.
J.
Therefore,
from
1)
operated its WWTP without a duly certified operator in violation of IC
13-18-11-14;
2)
failed to have the WWTP under the direct supervision of an operator
certified by the Commissioner as required by IC 13-18-11 and 327 IAC 22, in
violation of 327 IAC 5-2-8(1), Part
II.A.1 of the Permit, and Part II.A.14 of the
Permit;
3)
failed to provide an adequate operating staff which was duly qualified to
carry out the operation, maintenance, and testing functions required to insure
compliance with the conditions of the Permit, in violation of 327 IAC 5-2-8(1), Part
II.A.1 of the Permit, and Part II.B.1.b of the Permit; and
4)
submitted monitoring reports, including DMRs, that were not prepared by
or under the direction of a certified wastewater treatment plant operator
licensed under the provisions of 327 IAC 8, in violation of 327 IAC
5-2-15.
K.
Pursuant to 327 IAC
L.
IDEM records indicate that the Respondent's
actions at the Town of Sunman wastewater treatment plant from July 1, 2002
through May 8, 2003, were in violation of IC 13-18-11-14 and 327 IAC 5-22, and
caused and/or contributed to the above noted violations of IC 13-18-11-14, Part II.A.14 of the Permit, Part
II.B.1.b of the Permit, and 327 IAC 5-2-15.
M. IDEM
records also indicate that the Respondent served at other wastewater treatment
facilities and caused and contributed to the above noted violations at those
facilities, including those at Echo Lake Mobile Home Park (NPDES Permit No.
IN0030902),
9.
Based on an investigation by designated representatives of IDEM, the
Respondent's actions as a certified operator at multiple public water supply
systems, have violated, and caused and/or contributed to the violation of, the
following environmental statutes, rules, and provisions:
A.
Pursuant to IC 13-18-11-11(b), a certified operator may supervise more
than one plant or system if it can be shown that adequate supervision to ensure
safe and effective operation is provided for all plants and systems supervised.
B.
Pursuant to 327 IAC 8-12-3.6(a), a certified operator may be in
responsible charge of more than one water treatment or water distribution
system, if the following conditions are met:
1)
The certified operator will be able to provide adequate supervision to
all units involved.
2)
Prior to undertaking multiple operator positions of responsible charge, a
letter signed by the certified operator must be submitted to the owner or
governing body of each water treatment plant and water distribution system with
the following information:
a)
The name and location of each water treatment plant and water
distribution system to be under the responsible charge of the certified
operator.
b)
The number of hours per week the certified operator shall work at each
water treatment plant and water distribution system.
C.
Pursuant to 327 IAC 8-12-3.6(c), the commissioner may request written
submission documenting the following:
(1) The
name, location, and classification of each water treatment plant and water
distribution system under the responsible charge of a certified
operator.
(2) The
amount of time that a certified operator in responsible charge spends at a
facility of responsibility identified according to subdivision
(1).
D.
Pursuant to 327 IAC 8-12-3.6(d), the commissioner shall evaluate
information required by this section and any other information pertinent to a
water treatment plant or water distribution system under the supervision of a
certified operator in responsible charge of multiple
facilities.
E.
On
F.
Based on the record review, including review of the information the
Respondent submitted in response to IDEM's April 10, 2001, June 21, 2001, July
20, 2001, and September 12, 2001 requests for written submission documenting the
information pursuant to 327 IAC 8-12-3.6(c), IDEM has determined that the
Respondent is in violation of 327 IAC 8-12-3.6(a), in that the Respondent is a
certified operator in responsible charge of more than one water treatment plant
or water distribution system and are unable to provide adequate supervision to
all units involved, and the Respondent did not, prior to undertaking multiple
operator positions of responsible charge, submit the letter or letters required
by 327 IAC 8-12-3.6(a).
G.
Additionally, based on the record review, IDEM has determined that the
Respondent is in violation of IC 13-18-11-11(b), in that it can not be shown
that adequate supervision to ensure safe and effective operation is provided for
all systems the Respondent supervises.
10.
On
11. 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.
The Respondent shall comply with IC 13-18-11-14 and 327 IAC 5-22, and
shall not cause or contribute to violations of 327 IAC
3. The Respondent shall not perform the duties of an operator in responsible charge of a water or wastewater treatment plant or a water distribution system without being duly certified under the provisions of IC 13-18-11-14.
4. The Respondent shall comply with IC 13-18-11-11(b), 327 IAC 8-12-3.6(a), and 327 IAC 8-12-3.6(c).
5. Within 30 days of the Effective Date of this Agreed Order, the Respondent shall develop and submit to IDEM for approval a “Operator Staffing Plan” which identifies:
a) For each wastewater treatment plant, each water treatment plant, and/or each water distribution system that the Respondent serves or proposes to serve as certified operator:
(1) the name of the facility, the owner or governing body, and mailing address,
(2) the Public Water Supply Identification Number (PWSID) for each PWSS, and the NPDES permit number for each wastewater system,
(3) location, including county and street address, of the facility,
(4) classification of the wastewater treatment plant (Municipal/Semi-public/Industrial and Class I, II, III, or IV), and the classification of water treatment plant and the water distribution system (community or non-community, and DSS, DSM, DSL, WT 1, WT2, WT3, WT4, or WT5),
(5) the number of visits that the Respondent shall make to each facility each week,
(6) the amount of time the Respondent will spend at each facility per visit and per week,
(7) a list of forms the Respondent will be responsible for completing and signing for each facility,
(8) the distance from the Respondent's home or office to each facility for which he is designated as certified operator in responsible charge,
(9)
copies of all letters signed by the Respondent or employees of R.J.
Middleton & Associates, Inc., as the certified operator in responsible
charge and submitted to the owner or governing body of each water treatment
plant and water distribution system under the Respondent, or employees of R.J.
Middleton & Associates, Inc., as required by 327 IAC 8-12-3.6(a)(2).
b) For each certified operator that is employed by R.J. Middleton & Associates, Inc., or is otherwise affiliated with the Respondent in operating any wastewater or water treatment plant and water distribution system, the Respondent shall submit a list with the certified operator's name, address, and certification number(s) and the same information as required by Item 5.a) above.
6.
The Operator Staffing Plan required by 5.a) and 5.b) above is subject to
IDEM approval. If IDEM deems the
plan inadequate, a revised Operator Staffing Plan shall be submitted within 30
days of receipt of notice from IDEM of the inadequacies thereof. If, after submission of the first
revised plan, IDEM still finds the Operator Staffing 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 Operator Staffing Plan by a
specific date. If, by the specified date, the Respondent does not incorporate
the IDEM-suggested modifications into the second revised plan or submit an
alternative adequate plan (as determined by IDEM), the Respondent will be
subject to stipulated penalties as described below.
The Respondent, upon receipt
of written notification from IDEM, shall immediately implement the approved
Operator Staffing Plan and adhere to the staffing and other requirements
contained in the approved plan for 12 consecutive months. The approved Operator
Staffing Plan shall be incorporated into the Agreed Order and shall be deemed an
enforceable part thereof.
7.
The Respondent, and all certified operators employed by R.J. Middleton
& Associates, Inc., or are otherwise affiliated with the Respondent in
operating any wastewater or water treatment plant and water distribution system,
shall assure that attendance, maintenance, sampling, and activity logs are
maintained at each facility.
The
Respondent shall submit copies of the logs to Mary Hollingsworth , Chief,
Permits, Certification and Capacity Section, Drinking Water Branch, of IDEM's
Office of Water Quality, at the address in paragraph 9 below, documenting
the certified operator attendance,
maintenance, sampling, and other activities performed
during the previous month postmarked no later that the 10th day of the month
following each completed monitoring period. Failure to demonstrate compliance
with the approved Operator Staffing Plan for 12 months consecutive months
following approval of the plan will subject Respondent to additional enforcement
action.
8.
Beginning on the Effective Date of this Agreed Order and continuing until
the completion of the 12 consecutive month compliance demonstration period
provided for by Paragraphs 6 and 7 above, the Respondent, and all certified
operators employed by R.J. Middleton & Associates, Inc. or are otherwise
affiliated with the Respondent, shall:
a)
operate all wastewater or water treatment plant(s) and water distribution
system(s) as efficiently and effectively as possible,
b)
carry out the operation, maintenance, and testing functions required to
assure compliance with the conditions of the Permit,
c)
assure that all monthly reports for the NPDES permitted facilities are
completed and submitted as required by each NPDES permit,
d)
assure that all samples at all PWSS facilities are taken on time and are
satisfactory, or if any sample is unsatisfactory, that necessary repeat sampling
is conducted and public notifications are issued, and
e)
that reports and sampling results for the PWSS are submitted as required
by each PWSS permit.
Failure to comply with these
provisions will be subject the Respondent to stipulated penalties as described
below.
9. All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:
Terry Ressler, Enforcement
Case Manager
Office of Enforcement
Indiana Department of Environmental Management
and to: Mary Hollingsworth, Chief
Permits, Certification and Capacity Section
Drinking Water Branch
Office of Water Quality
10. Respondent is assessed a civil penalty of One Thousand Two Hundred Dollars ($1,200). 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.
11. 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:
|
Order Paragraph
Number |
Violation |
Penalty
Amount |
|
5 |
Failure to submit the
Operator Staffing Plan, as required, within the given time
period. |
$250 per each week
late |
|
6 |
Failure to submit any
revised Operator Staffing Plan, if required, within the given time
period. |
$250 per each week
late |
|
6 |
Failure to implement
the approved Operator Staffing Plan, or adhere to the staffing and other
requirements contained in the approved plan. |
$500 per each
violation |
|
7 |
Failure to maintain a
log at a facility. |
$250 per each
violation |
|
7 |
Failure to submit
copies of the logs within the given time periods. |
$250 per each week
late |
|
8 |
Failure to comply with
item 8(a),(b),(c),(d), or (e). |
$250 per
violation |
12. Stipulated penalties shall be due and payable within 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.
13. 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
14. In the event that the civil penalty required by Order paragraph 10 is not paid within 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.
15. 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.
16. 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.
17. 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.
18. This Agreed
Order is not and shall not be interpreted to be a Permit, nor shall it in any
way relieve Respondent of its obligation to comply with the applicable
requirements of federal or state
law or regulation.
19. 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.
20. This Agreed
Order shall remain in effect until the Respondent has complied with the terms
and conditions of Paragraphs 3 through 14 of this Agreed Order and IDEM issues a
“close out” letter to the Respondent.
TECHNICAL RECOMMENDATION:
RESPONDENT:
Department of Environmental Management
Ronald J. Middleton
Department of Environmental Manage
By: _________________________
By: _________________________
Mark W. Stanifer, Chief
Chief, [Section]
Water Enforcement Section
Printed: ______________________
Office of Enforcement
Title: ________________________
Date: ________________________
Date: ________________________
COUNSEL FOR COMPLAINANT:
COUNSEL FOR RESPONDENT:
Department of Environmental
Management
By: __________________________
By: ________________________
Joseph H.
Merrick
Office of
Legal Counsel
Date: _______________________
Date: ______________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF
ENVIRONMENTAL MANAGEMENT THIS _____ DAY OF ____________________,
200__.
For the Commissioner:
_Signed
Felicia A. Robinson
Deputy Commissioner
for Legal
Affairs