STATE OF INDIANA		)		BEFORE THE INDIANA DEPARTMENT
		)	SS:	OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION		)
COMMISSIONER OF THE DEPARTMENT					)
OF ENVIRONMENTAL MANAGEMENT,					)
					)
	Complainant,				)
					)
	v.				)	CASE NO. 2004-13907-W
					)
MECK‘S WHISPERING PINES, 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.

I. FINDINGS OF FACT

1. The Complainant is the Commissioner (“Complainant”) of the Indiana Department of Environmental Management (“IDEM”), a department of the State of Indiana created by Indiana Code (“IC”) 13-13-1-1.

2. The Respondent is Meck’s Whispering Pines, Inc. (“Respondent”), which owns and operates Meck’s Whispering Pines Mobile Home Park (“MHP”), which includes a sanitary sewer collection system and semipublic wastewater treatment plant (“WWTP”), located at 340 East Levi Road near Warsaw, Kosciusko County, Indiana (“Site”). The Respondent’s Site is authorized by National Pollutant Discharge Elimination System (“NPDES”) Permit Number IN0054704 (“Permit”) to discharge wastewater treated in accordance with the terms and conditions of the NPDES Permit from its WWTP into Heiman Ditch (“Receiving Waters”) via Outfall 001.

3. IDEM has jurisdiction over the parties and subject matter of this action.

4. Pursuant to IC 13-30-3-3, on July 8, 2004, IDEM issued a Notice of Violation (“NOV”) via Certified Mail to:

Stephen Meck, President and Registered Agent
Meck‘s Whispering Pines, Inc.
340 East Levi Lee Road, WP 98
Warsaw, IN 46580

5. Subsequent to its issuance, the July 8, 2004, NOV was superceded by IDEM’s issuance of an Amended NOV to the same address listed in Section I, Paragraph 4, of this Agreed Order.

6. A records review was conducted by a representative of IDEM’s Office of Water Quality. The following violations were in existence or observed at the time of this records review:

A. Pursuant to 327 Indiana Administrative Code (“IAC”) 5-2-8(1) and Part II.A.1 of the Permit issued to the Respondent’s Site, the permittee is required to comply with all terms and conditions of the Permit.

Part I.A.1 of the Permit issued to the Respondent’s Site contains final numeric effluent limitations and monitoring requirements applicable to the discharge of treated wastewater from Outfall 001.

The Respondent failed to meet the final numeric effluent limitations established in the Permit issued to the Respondent’s Site, as reported by the Respondent on discharge monitoring reports (“DMRs”) submitted for the Site’s WWTP for the months of May 2001 through March 2004 and as specified below, in violation of 327 IAC 5-2-8(1), and Parts I.A.1 and II.A.1 of the Permit issued to the Respondent’s Site:

i. Total Suspended Solids (“TSS”) limitations during July 2001; April 2002; and April, May, June, July, August, and November 2003.

ii. Ammonia-Nitrogen limitations during August and September 2002; April, June, July, August, and September 2003; and January and February 2004.

iii. E. coli limitations during July, August, September, and October 2001; April, May, June, July, August, September, and October 2002; and May, June, July, August, and September 2003.

iv. Dissolved Oxygen (“DO”) limitations during May, June, July, August, September, October, and November 2001; January, February, March, April, May, June, July, August, and November 2002; and June, July, August, and November 2003.

B. Pursuant to Indiana Code (“IC”) 13-30-2-1(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.

The Respondent’s violation of 327 IAC 5-2-8(1) by failing to meet the numeric effluent limitations contained in the Permit issued to the Respondent’s Site, as referenced in Section I, Paragraph 6.A, of this Agreed Order, caused or would have caused pollution.  Because the Respondent violated 327 IAC 5-2-8(1), a rule adopted by the Water Pollution Control Board under the environmental management laws, in a manner that caused or would have caused pollution, the Respondent violated IC 13-30-2-1.

C. Pursuant to 327 IAC 5-2-8(1) and Part II.A.1 of the Permit issued to the Respondent’s Site, the permittee is required to comply with all terms and conditions of the Permit.

Pursuant to 327 IAC 5-2-8(9), the permittee shall comply with the monitoring, recording and reporting requirements established in accordance with 327 IAC 5-2-13, 327 IAC 5-2-14, and 327 IAC 5-2-15.

Pursuant to 327 IAC 5-2-13(a), all NPDES permittees shall monitor parameters and conditions specified by the permit, including but not limited to, the following:

i. The volume of wastewater flow at monitoring points specified in the permit, including the final effluent flow from each point source.

ii. Other parameters as specifically required in the permit.

Pursuant to 327 IAC 5-2-13(b), a publicly owned treatment works (“POTW”) shall monitor the mass concentration, or other units of specified pollutants in the raw influent, in the discharge from intermediate unit treatment processes as specified in the permit or on the applicable report of operation form (also referred to as “monthly report of operations” or “MRO”), and in the final effluent, as well as the volume of effluent flow.  For the purposes of 327 IAC 5-2-13, a POTW includes a private utility of a quasi-public nature which owns or operates a treatment plant for a mobile home park.

Part I.A.1 of the Permit issued to the Respondent’s Site contains final numeric effluent limitations and monitoring requirements applicable to the discharge of treated wastewater from Outfall 001.

Pursuant to Part I.B.2 of the Permit issued to the Respondent’s Site, the permittee is required to sample and analyze the influent and wastewater from unit treatment processes for the pollutants and operational parameters specified by the applicable MRO, as appropriate, in accordance with 327 IAC 5-2-13.

Pursuant to 327 IAC 5-2-15(a), all NPDES permittees shall report to the commissioner, using DMRs and, in the case of POTWs, semipublic, state, and federal facilities’ MROs, the results of any monitoring specified by the permit, pursuant to 327 IAC 5-2-13, as often as required by the permit.

Pursuant to Part I.B.3 of the Permit issued to the Respondent’s Site, the permittee shall submit to IDEM monitoring reports, including but not limited to DMRs and MROs, containing the results obtained during the previous month.

The Respondent failed to monitor and/or report monitoring results as identified below, as determined by a review of the DMRs and/or MROs submitted by the Respondent for the Site’s WWTP for the specified period, in violation of one or more of 327 IAC 5-2-8(1), 327 IAC 5-2-8(9), 327 IAC 5-2-13, 327 IAC 5-2-15(a), and Parts I.A.1, I.B.2, I.B.3, and II.A.1 of the Permit issued to the Respondent’s Site:

A. Various aspects of the raw influent, influent loading, effluent loading, and the aeration tank treatment process, as required, for one or more months during the period of December 2003 through April 2003.

B. The volume of effluent flow, as required, for one or more months during the period of May 2001 through March 2004.

7. On August 4, 2004, a settlement conference was held between the parties. During this meeting, the Respondent told IDEM the following:

A. That the Site was in poor condition when acquired in 2001.

B. That many of the violations occurred because, prior to January 2004, the corporation was co-owned by Steven Meck, the current corporation president, and his brother. During this time, Mr. Meck tried to institute appropriate measures to correct many of the violations. However, his brother was the controlling manager and vetoed his attempts.

C. Around the beginning of 2004, Mr. Meck bought his brother’s interest in the corporation.

D. Since buying out his brother, Mr. Meck has made substantial improvements at the Site.

8. Since April 1, 2004, the Respondent’s Site has experienced 2 months of TSS limitation violations, one month of Ammonia-Nitrogen limitation violations, 2 months of E. coli limitation violations, and 3 months of DO limitation violations. However, no violations have occurred since August 31, 2004.

9. 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 his 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 all applicable provisions of the IC, IAC, and any effective permits, including but not limited to, 327 IAC 5-2-8(1), 327 IAC 5-2-8(9), 327 IAC 5-2-13(a), 327 IAC 5-2-13(b), 327 IAC 5-2-15(a), and NPDES Permit No. IN0054704.

3. Beginning on the Effective Date of this Agreed Order and continuing until the completion of the Compliance Plan required by Section II, Paragraph 4, of this Agreed Order, the Respondent shall, at all times, operate the Site’s existing WWTP as efficiently and effectively as possible.

4. Within 60 days after the Effective Date of this Agreed Order, the Respondent shall develop and submit to IDEM for approval a Compliance Plan (“CP”) which identifies the actions that the Respondent will take to achieve and maintain continuous compliance with the terms and conditions of the Permit issued to the Respondent’s Site, specifically including the actions the Respondent will take to:

A. achieve and maintain continuous compliance with the final numeric effluent limitations contained in the Permit for TSS, Ammonia-Nitrogen, E. coli, and DO; and

B. comply with the monitoring and reporting requirements contained in the Permit, including those for the intermediate unit treatment processes listed in Attachment A of this Agreed Order.

The CP shall be subject to the approval of IDEM pursuant to Section II, Paragraph 7, of this Agreed Order.

5. Upon completion of the CP, the Respondent shall be subject to stipulated penalties, as specified in Section II, Paragraph 13, of this Agreed Order, for failure to comply with any final numeric effluent limitation contained in the Permit issued to the Respondent’s Site. The stipulated penalty assessed shall be based upon the highest level of noncompliance per each monthly monitoring period per each monitoring parameter’s set of limitations, daily limitations being considered the lowest and monthly limitations being considered the highest.

6. Upon completion of the CP required by Section II, Paragraph 4, of this Agreed Order, the Respondent shall, within 18 months after completion of the CP (“Performance Period”), demonstrate 12 consecutive months of compliance (“Compliance Demonstration”) with the effluent limitations contained in the Permit issued to the Respondent’s Site. In the event that the Respondent fails to make the Compliance Demonstration, the Respondent shall, within 60 days after becoming aware that the Compliance Demonstration cannot be achieved, develop and submit to IDEM for approval an Additional Action Plan (“AAP”) which identifies the additional actions that the Respondent will take to achieve and maintain continuous compliance with the final numeric effluent limitations contained in the Permit issued to the Respondent’s Site. The AAP, if required, shall include an implementation and completion schedule, including specific milestone dates. The AAP shall be subject to the approval of IDEM pursuant to Section II, Paragraph 7, of this Agreed Order.

7. The CP and AAP required by Section II, Paragraphs 4 and 6, of this Agreed Order, are subject to IDEM’s approval. If IDEM deems either document inadequate, a revised document shall be submitted within 15 days after 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 document as necessary to meet IDEM’s requirements, and require resubmittal of the document by a specific date. If the subsequently submitted second revised document does not meet IDEM’s approval, IDEM will suggest specific modifications to be made to the document and require resubmittal by a specific date. If, by the specified date, the Respondent does not incorporate the IDEM-suggested modifications into the third revised document, or submit an alternative adequate document, as determined by IDEM, the IDEM-suggested modifications will be deemed incorporated into the document. In addition, the Respondent will be subject to stipulated penalties as described in Section II, Paragraph 13, of this Agreed Order.

8. The Respondent, upon receipt of written notification from IDEM, shall immediately implement the provisions of any approved plan and adhere to any milestone dates therein. Any approved plan shall be incorporated into this Agreed Order and shall be deemed an enforceable part thereof.

9. In the event the Respondent determines that the final implementation date of any approved plan cannot be met, for reasons other than “Force Majeure,” the Respondent shall, as soon as practicable but prior to the passing of the final implementation date, submit written notification to IDEM of such determination. The written notification shall identify the plan for which the implementation date will not be met and include a detailed explanation of the reason or reasons the Respondent will be unable to meet the final implementation date in the approved plan. In addition, this notification shall include a revised implementation schedule, subject to IDEM’s approval pursuant to Section II, Paragraph 7, of this Agreed Order.

If IDEM determines that the reason or reasons cited by the Respondent in its explanation for being unable to meet the approved final implementation date are inadequate, the Respondent’s failure to meet the implementation date in question shall be subject to stipulated penalties, as specified in Section II, Paragraph 13, of this Agreed Order.

10. “Force Majeure”, for purposes of this Agreed Order, is defined as any event arising from causes totally beyond the control and without fault of the Respondent that delays or prevents the performance of any obligation under this Agreed Order despite the Respondent’s best efforts to fulfill the obligation. The requirement that the Respondent exercise “best efforts to fulfill the obligation” includes using best efforts to anticipate any potential Force Majeure event and best efforts to address the effects of any potential Force Majeure event (1) as it is occurring and (2) following the potential Force Majeure event, such that the delay is minimized to the greatest extent possible. Force Majeure does not include changed business or economic conditions, financial inability to complete the work required by this Agreed Order, or increases in costs to perform the work.

The Respondent shall notify IDEM by calling the case manager within three calendar days and by writing no later than seven calendar days after it has knowledge of any event which the Respondent contends is a Force Majeure. Such notification shall describe the anticipated length of the delay, the cause or causes of the delay, the measures taken or to be taken by the Respondent to minimize the delay, and the timetable by which these measures will be implemented. The Respondent shall include with any notice all available documentation supporting its claim that the delay was attributable to a Force Majeure. Failure to comply with the above requirements shall preclude the Respondent from asserting any claim of Force Majeure for that event. The Respondent shall have the burden of demonstrating that the event is a Force Majeure. The decision of whether an event is a Force Majeure shall be made by IDEM.

If a delay is attributable to a Force Majeure, IDEM shall extend, in writing, the time period for performance under this Agreed Order, by the amount of time that is directly attributable to the event constituting the Force Majeure.

11. Within five days after full implementation of any approved plan, the Respondent shall submit written notification of such to IDEM. The notification shall identify the fully implemented plan, including the date of completion.

12. All submittals required by this Agreed Order, unless specified otherwise in writing, shall be sent to:

Susan Baker, Case Manager
Water Enforcement Section
Office of Enforcement
Indiana Department of Environmental Management
P.O. Box 6015
Indianapolis, Indiana 46206-6015

13. In the event the terms and conditions of the following paragraphs of Section II of this Agreed Order are violated, the Complainant may assess and the Respondent shall pay a stipulated penalty in the following amount:

Violation	Penalty
Failure to comply with Paragraph 3	$250 per each instance that IDEM determines that the Respondent is not operating its existing WWTP as efficiently and effectively as possible.
Failure to comply with Paragraph 4	$100 per each week, or part thereof, past the 60-day deadline that the Respondent fails to submit the initial CP.
Failure to comply with Paragraph 5	$100 per each daily limitation per each monitoring parameter during each monthly monitoring period with which the Respondent fails to comply, if the daily limitation is determined to be the highest level of noncompliance for that monitoring parameter.
	$250 per each weekly limitation per each monitoring parameter during each monthly monitoring period with which the Respondent fails to comply, if the weekly limitation is determined to be the highest level of noncompliance for that monitoring parameter.
	$500 per each monthly limitation per each monitoring parameter during each monthly monitoring period with which the Respondent fails to comply, if the monthly limitation is determined to be the highest level of noncompliance for that monitoring parameter.
Failure to comply with Paragraph 6	$100 per each week, or part thereof, past the 60-day deadline that the Respondent fails to submit the initial AAP, if required.
Failure to comply with Paragraph 7	$100 per each week, or part thereof, past the 15-day or other specified deadline that the Respondent fails to submit any required document revision.
Failure to comply with Paragraph 9	$1000 per each instance that the Respondent fails to meet the final implementation date in any approved plan without having an adequate reason for having done so.

14. 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 this Agreed Order. In lieu of assessment of the stipulated penalty 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.

15. The Respondent is assessed a Civil Penalty of Two Thousand, Four Hundred Dollars ($2,400). Said penalty amount shall be due and payable to the Environmental Management Special Fund within 30 days after the Effective Date of this Agreed Order.

16. 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
IDEM
100 N. Senate Avenue
P.O. Box 7060
Indianapolis, Indiana 46207-7060

17. In the event that the civil penalty required by Section II, Paragraph 15, of this Agreed Order is not paid within 30 days after 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.

18. This Agreed Order shall apply to and be binding upon the Respondent, its officers, directors, principals, agents, successors, subsidiaries, and assigns. The signatories to this Agreed Order certify that they are fully authorized to execute this Agreed Order 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.

19. In the event that any terms of this 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.

20. 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 by contract require that all contractors, firms, and other persons acting for it comply with the terms of this Agreed Order.

21. 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 Respondent of its obligation to comply with the requirements of its applicable Permit or with any other applicable federal or state law or regulation.

22. 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 the provisions of the Clean Water Act, its Permit, federal, or state law.

23. This Agreed Order shall remain in effect until the Respondent has complied with all terms and conditions of Section II, Paragraphs 2 through 17, of this Agreed Order, and IDEM has issued a Close-Out letter to the Respondent.

TECHNICAL RECOMMENDATION:			RESPONDENT:
Department of Environmental Management			Meck’s Whispering Pines, Inc.
By:			By:
	Mark W. Stanifer, Chief		Printed:
	Water Enforcement Section		Title:
	Office of Enforcement
Date:			Date:
COUNSEL FOR COMPLAINANT:			COUNSEL FOR RESPONDENT:
Department of Environmental Management
By:			By:
	Office of Legal Counsel
Date:			Date:
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS		DAY OF		, 200	.
			For The Commissioner:
			Signed on March 23, 2005
			Matthew T. Klein
			Assistant Commissioner