STATE OF
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BEFORE THE INDIANA DEPARTMENT
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OF ENVIRONMENTAL MANAGEMENT |
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COMMISSIONER
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ENVIRONMENTAL
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Complainant, |
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v. |
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CASE NO.2004-14313-W |
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JAY |
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Respondent. |
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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 (IDEM), a department of the State of
2.
Respondent is the Jay County Board of County Commissioners,
(Respondent), which has jurisdiction over and responsibility for the septic
tank systems and county ditches and drains in the unincorporated area
surrounding the Foxfire Subdivision, County Road 125 South, and State Route 67
located in Jay County, near Portland, Indiana (Site).
3.
IDEM has jurisdiction over the parties and subject matter of
this action.
4.
Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation,
on January 26, 2005, via Certified Mail to:
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Mr. Milo Miller, President |
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Jay |
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5.
Pursuant to IC 13-30-2-1, 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 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 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
Indiana; or cause, permit, or suffer to be thrown, run, drained, allowed to
seep, or otherwise disposed into any waters; any organic or inorganic matter
that causes or contributes 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 5-2-2, any discharge of pollutants into
the waters of the state as a point source discharge, except for exclusions made
in 327 IAC 5-2-4, is prohibited unless in conformity with a valid NPDES permit
obtained prior to the discharge.
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 on August 25, 2004, which included
a review of the record of results of a sample obtained August 18, 2004,
indicates that the septic tank systems of the unincorporated area surrounding
Foxfire Subdivision, County Road 125 South, and State Route 67 in
10.
A settlement conference was held on April 6, 2005, at which
it was determined that there is a need for planning for solution(s) and
consideration of formation of a Jay County Regional Sewer District to address
the problem septic systems that continue to discharge to waters of the state in
the unincorporated area surrounding Foxfire Subdivision, County Road 125 South,
and State Route 67 in Jay County.
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 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 Indiana Code (IC), and the Indiana Administrative Code (IAC), including,
but not limited to, IC 13-30-2-1, IC 13-18-4-5, and 327 IAC 2-1-6(a)(1), and
327 IAC 5-2-2.
3.
Within 180 days of the Effective Date of this Agreed Order,
the Respondent shall develop and submit to IDEM, for approval, a compliance
plan (CP) that describes the actions that the Respondent will take to eliminate
the unlawful discharge of untreated sewage to waters of the state. Such actions
shall include, but not necessarily be limited to the following:
Signing a petition for the formation of a County
Regional Sewer District for the purpose of planning and coordination with the
local entities resulting in implementation of a means to cease the inadequately
treated discharges from septic tank systems from discharging to the ground
surface, entering ditches or other surface waters.
The CP shall include an implementation and completion schedule, including
specific milestone dates.
4.
Upon completion of the CP required pursuant to 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 Respondents shall, within nine months of the completion
of the portion of the CP required by Paragraph 3 (Performance Period), demonstrate
a period of six consecutive months of compliance (Compliance Demonstration) of
no continuing unauthorized discharges.
In the event that the Respondents fail to make the Compliance Demonstration,
the Respondents shall, within 60 days 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 Respondents will
take to comply with all applicable environmental regulations. The “Action Plan”, if required, shall include
a new implementation and completion schedule, including specific milestone
dates.
6.
The plans required pursuant to Order Paragraphs 3 and 5
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
Respondents 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.
7.
The plans required pursuant to Order Paragraphs 3 and 5
above shall, upon approval by IDEM, be incorporated into this Agreed Order and
shall be deemed an enforceable part thereof.
The Respondents, upon receipt of written approval from IDEM, shall
immediately implement the approved plan and adhere to the milestone dates
therein. Failure to achieve compliance
at the conclusion of work under an “Action Plan” will subject the Respondents
to additional enforcement action.
8.
The Respondents shall notify IDEM, in writing, within 10
days of the 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
specified otherwise in writing, shall be sent to:
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Dave Knox,
case manager |
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Indiana
Department of Environmental Management |
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Office of
Enforcement – Mail code 60-02 |
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10.
In the event that any of 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:
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Paragraph Number |
Violation |
Penalty Amount |
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3 |
Failure to timely submit
the CP. |
$500 per each week or
part thereof late |
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4 |
Failure to cease
unauthorized discharges subsequent to completion of the CP. |
$1000 per violation event |
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5 |
Failure to timely submit
the Action Plan, if necessary. |
$500 per each week or
part thereof late |
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5 |
Failure to demonstrate
six consecutive months of compliance within the nine months of
completing the performance monitoring period. |
$500 per month, or part
thereof |
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6 |
Failure to timely revise
and re-submit plan, if necessary |
$500 per each week or
part thereof late |
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7 |
Failure to meet any
milestone date set forth in any approved plan |
$500 per each week or
part thereof late |
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8 |
Failure to timely submit
notification to IDEM |
$250 per each week or
part thereof late |
11.
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 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 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 (2004-14313-W) of this action and
shall be mailed to:
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Indiana
Department of Environmental Management |
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Cashiers
Office – Mail Code 50-10C |
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13.
In the event that any stipulated penalty amount assessed
pursuant to Paragraph 10 is not paid within 30 days of receipt of notice that
it is due, 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 stipulated penalty is paid in full.
14.
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.
15.
“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.
16.
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.
17.
This Agreed Order is not and shall not be interpreted to be
a Permit, nor shall it in any way relieve the Respondent of its obligation to
comply with the requirements of any applicable federal or state law or
regulation.
18.
The Respondent shall provide a copy of this Agreed Order, if
in force, to any subsequent owners of successors before ownership rights are
transferred. Respondent shall by
contract require that all contractors, firms, and other persons acting for it
comply with the terms of this Agreed Order.
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 the provisions of
the Clean Water Act, its Permit, federal, or state law.
20.
This Agreed Order shall remain in effect until the
Respondent has complied with all terms and conditions of Order Paragraphs 3
through 13 of this Agreed Order, and Complainant has issued a close-out letter.
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TECHNICAL RECOMMENDATION: |
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RESPONDENT: |
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Department of
Environmental Management |
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By: |
___________________ |
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By: |
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Mark W. Stanifer, Chief |
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Jay |
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Water Enforcement Section |
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Commissioners |
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Office of Enforcement |
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Date: |
____________________ |
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Date: |
____________________ |
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COUNSEL FOR COMPLAINANT: |
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COUNSEL FOR RESPONDENT: |
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Department of
Environmental Management |
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By: |
______________________ |
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By: |
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Office of Legal Counsel |
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Date: |
_____________________ |
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Date: |
________________ |
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APPROVED AND ADOPTED BY
THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT
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DAY OF |
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For The Commissioner: |
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Signed 11/16/05 |
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Matthew T. Klein |
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Assistant Commissioner |
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of Compliance and
Enforcement |
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