STATE OF
) SS:
IN THE MATTER OF:
COMMISSIONER, )
INDIANA DEPARTMENT OF )
ENVIRONMENTAL MANAGEMENT )
)
Complainant, )
v. )
) CAUSE NO. 2004-14031-W
WILLIAM E. ROSS, )
CLASS II OPERATOR'S )
CERTIFICATE NO. 14127, )
)
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. 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. Complainant is the Commissioner
("Complainant") of the Indiana Department of Environmental
Management, a department of the State of
IC 13-13-1-1.
2. Respondent
is William E. Ross, who was issued a Class II Operator's Certificate No. 14127 in 1998 by IDEM in
accordance with 320 IAC 3-10.1, subsequently recodified as 327 IAC 5-22.
The operator's certificate was last renewed on
3. The
4. The Respondent waives his right to issuance of a Notice of Violation and to the settlement period of sixty (60) days as provided for by IC 13-30-3-3(b).
5. The Respondent was the wastewater treatment
plant certified operator of record for the Town of
5. The
Respondent, as certified operator for the Town of
6. IC 13-18-11-8(a) provides that:
(a) The commissioner may revoke the certificate of an operator, following a hearing under IC 13-15-7 and IC 4-21.5, if any of the following conditions are found:
(1) The operator has practiced fraud or deception.
(2) Reasonable care, judgment, or the application of the operator's knowledge or ability was not used in the performance of the operator's duties.
(3) The operator is incompetent or unable to properly perform the operator's duties.
(b) A hearing and further proceedings shall be conducted in accordance with
IC 4-21.5-7.
7. 327
IAC
8. The Respondent has practiced fraud or deception.
9. The Respondent has not used reasonable care, judgment, or the application of his knowledge or ability in the performance of his duties as a certified operator.
10. IDEM's
contentions are supported by an investigation conducted at the Town of
11. Pursuant to 327 IAC 5-2-8 and the Part II.A.1 of Town of Greentown's NPDES permit, the Respondent, as the certified operator, has a duty to comply with all the terms and conditions contained in the NPDES permit.
12. Pursuant to 327 IAC 5-2-13, the Respondent, as the certified operator, has a duty to monitor the mass, concentration, or other measurement specified in 327 IAC 5- 2, for each pollutant specified in the permit.
13. Pursuant to 327 IAC 5-2-15, the Respondent, as the certified operator, was responsible for taking wastewater samples and recording monitoring and other information associated with the samples and operations at the WWTP and has a duty to prepare or direct the preparation of Discharge Monitoring Reports (DMRs) and Monthly Reports of Operation (MROs).
14. Pursuant
to 327 IAC
15. The investigation revealed the Respondent prepared and submitted fraudulent DMRs and MROs containing unrepresentative sample analyses results for samples taken at the Town of Greentown's wastewater treatment plant during the period of January of 2000 through October of 2002, as documented by an inspection by IDEM staff conducted on October 24, 2002, and a record review of sampling and analysis records, equipment calibration records, and DMRs and MROs submitted by the Respondent to IDEM. It was determined that some of the samples required to be taken by the Town of Greentown's NPDES permit were not performed, for those samples that were performed it was determined that in numerous instances the samples were not analyzed correctly, and many of the sample results reported by the Respondent were determined to be incorrect and/or false.
16. On
the Office of Environmental Adjudication on the issue of whether cause exists for
revocation of the Respondent’s operator certification under IC 13-18-11-8.
17. On
treatment
plant operator certification had an expiration date of
to renew the certification. The Respondent submitted the $30 renewal fee and
other
necessary information and on
was renewed. The Respondent has not served as a certified operator at any
wastewater treatment facilities since the certification was renewed.
18. In recognition of the settlement reached, Respondent waives any right to administrative and judicial review of this Agreed Order, including but not limited
to a hearing and further proceedings conducted in accordance with IC 4-21.5-7.
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. Within ten (10) days of the Effective Date of this Agreed Order, the Respondent shall submit to IDEM, at the address identified in Order Paragraph 4, his Class II Wastewater Treatment Plant Operator's Certificate No. 14127 and Card. Upon receipt of the Respondent’s operator certificate and Card, IDEM will refund the $30 operator renewal fee referenced in Item 17 of the above Findings of Fact.
3. Upon submission of his certificate and card to IDEM, the Respondent shall never again act as, or in any way perform the duties of, a Certified Operator of any wastewater treatment plant, water treatment plant, or water distribution system in the State of Indiana, nor shall the Respondent ever again perform any monitoring, sampling, recordkeeping or reporting duties at any wastewater treatment plant, water treatment plant, or water distribution system in the State of Indiana, nor shall the Respondent apply or reapply for any operator's certificate provided for by 327 IAC 5-22 or 327 IAC 8-12. This Agreed Order does not prevent the Respondent from performing maintenance duties at a wastewater treatment plant as long as it is under the supervision of a properly certified operator.
4. 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
5. 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:
Violation Penalty
Failure to comply with Order paragraph No. 2 $500 per week late
Failure to comply with Order paragraph No. 3 $1000 per week or per event
6. Stipulated penalties shall be due and payable within thirty (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.
7. 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
8. This Agreed Order shall apply to and be binding upon the Respondent 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.
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. Respondent shall ensure that all contractors, firms and other persons performing work under this Agreed Order comply with the terms of this Agreed Order.
11. This Agreed Order shall remain in effect
until Respondent has complied with all terms and conditions of this Agreed
Order.
TECHNICAL RECOMMENDATION: RESPONDENT:
Department of Environmental Man Department
of Environmental Management
By: _________________________ By:
_________________________
Chief, [Section] Mark W. Stanifer William E. Ross
Chief, Water Enforcement Section
Office of Enforcement
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 ____________________, 2003.
For the Commissioner:
__Signed 10/8/04_____
Felicia A. Robinson
Deputy Commissioner
for Legal Affairs