STATE OF INDIANA

COUNTY OF MARION

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SS:

BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v.

ECOLOGICAL SYSTEMS, INC.,

Respondent.

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Case No. 2007-17091-W

 

 

AGREED ORDER

 

Complainant and 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 Indiana created by Indiana Code (“IC”) 13-13-1-1.

 

2.         Respondent is Ecological Systems, Inc. (“Respondent”), which owns and operates a centralized waste treatment facility/used oil processing plant located at 4910 West 86th Street in Indianapolis, Marion County, Indiana (the “Site”). Respondent is authorized by Industrial Discharge permit number 495306 (the "Permit") issued by the City of Indianapolis to discharge industrial wastewater to the Indianapolis publicly owned treatment works ("POTW") in accordance with the terms and conditions of the Permit.

 

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

 

4.         Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation (“NOV”) on October 15, 2007, via Certified Mail to:

 

Ecological Systems, Inc.

and to:

Ecological Systems, Inc.

Mary B. Horsch, Vice President

 

Mark W. Rutherford, Registered Agent

5232 West 79th Street

 

151 N. Delaware Street, Suite 1900

Indianapolis, IN  46268 

 

Indianapolis, IN  46204

 

5.         Pursuant to 327 IAC 5-18-2, a user of a POTW, whether or not the user is subject to national categorical standards or state, local, or any other national pretreatment standard or requirement, shall not allow the introduction of petroleum, oil, nonbiodegradable cutting oil, or products of mineral oil origin in an amount that could cause interference or pass through.

 

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:

(A)       the environment; or

(B)       any publicly owned treatment works;

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.

 

Pursuant to 327 IAC 5-16-4, a violation of the pretreatment rules may subject a person causing or contributing to the violation to administrative or judicial enforcement proceedings, under IC 13-30-3, and penalties provided under IC 13-30-4.  A violation of pretreatment rules includes the indirect discharge of pollutants in contravention of an applicable pretreatment standard or other applicable discharge limitation.

 

The Incident Report for Incident Number 2007-03-149, site visits conducted by IDEM staff, and Respondent's spill report received by IDEM on May 1, 2007, indicate that on March 16, 2007, IDEM was notified by Marion County Health Department that it was investigating a black sludge like substance that had flowed out of several sanitary sewer manholes of the collection system of the Indianapolis POTW.  The black sludge like substance was determined to contain a petroleum product.  The petroleum product was tracked back to Respondent's centralized waste treatment facility.

 

On March 21, 2007, IDEM staff met with Respondent at the Site and it was determined that an undetermined amount of waste oil that was being held at the Site for pretreatment had entered a sanitary sewer via a bypass sewer used for permitted special waste during severe rain event at the Site during the morning of March 15, 2007.

 

The discharge of the waste oil to the sanitary sewer, to the environment, and to waters of the State, was in violation of Respondent's Industrial Discharge permit number 495306, 327 IAC 5-18-2, IC 13-30-2-1, and pretreatment rules.

 

6.         Attachment B of the Indianapolis National Pollutant Discharge Elimination System ("NPDES") Permit No. IN 0023183, provides that overflows in the sanitary sewer system or in a sanitary portion of a combined sewer are expressly prohibited from discharging at any time.

 

Pursuant to 327 IAC 5-2-2, any discharge of pollutants into 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.

 

327 IAC 5-2-20 provides that any violation of 327 IAC 5 may subject the person causing or contributing to the violation to administrative or judicial enforcement proceedings, pursuant to IC 13-7-5 (currently IC 13-30-7), IC 13-7-11 (currently IC 13-30-3-3), and the penalties provided under IC 13-7-13 (currently IC 13-30-4-1).

 

Pursuant to 327 IAC 2-1-6, 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 that are in amounts sufficient to be unsightly or deleterious or that produce color, visible oil sheen, odor, or other conditions in such degree as to create a nuisance.

 

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 sections IC 13-18-4-1 and IC 13-18-4-3.

 

The Incident Report for Incident Number 2007-03-149, site visits conducted by IDEM staff, and Respondent's spill report received by IDEM on May 1, 2007, indicate that Respondent contributed to the overflows of the City of Indianapolis sanitary sewer system or sanitary portions of its combined sewer, contributed to the discharge of pollutants into waters of the state as a point source discharge that was not in conformity with a valid NPDES permit obtained prior to the discharge, and discharged oil to waters of the State that was in amounts sufficient to be unsightly or deleterious or that produce color, visible oil sheen, odor, or other conditions in such degree as to create a nuisance, in violation of Attachment B of the Indianapolis NPDES Permit No. IN 0023183, 327 IAC 5-2-2, 327 IAC 2-1-6, and therefore violated to IC 13-18-4-5.

 

7.         Pursuant to 327 IAC 2-6.1-7, any person who operates, controls, or maintains any mode of transportation or facility from which a spill occurs shall, upon discovery of a reportable spill to the soil or surface waters of the state, do the following:

 

A.        contain the spill, if possible, to prevent additional spilled material from entering the waters of the state.

B.        undertake or cause others to undertake activities needed to accomplish a spill response.

C.        as soon as possible, but within two hours of discovery, communicate a spill report to the Department of Environmental Management, Office of Environmental Response at 1-888-233-7745.

D.        submit to the Department of Environmental Management a written copy of the spill report, if requested in writing by the department.

E.        except from modes of transportation other than pipelines, exercise due diligence and document attempts to notify the following:

i.          for spills to surface water that cause damage, the nearest affected downstream water user located within ten miles of the spill and in the state of Indiana; and

ii.         for spills to soil outside the facility boundary, the affected property owner or owners, operator or operators, or occupant or occupants.

 

The Incident Report for Incident Number 2007-03-149, site visits conducted by IDEM staff, and Respondent's spill report received by IDEM on May 1, 2007, indicate Respondent failed to communicate a spill report to IDEM as soon as possible or within two hours of its discovery, failed to adequately contain the spill to prevent additional spilled material from entering the waters of the state, and failed to undertake or cause others to undertake activities needed to accomplish an adequate spill response, in violation of 327 IAC 2-6.1-7.

 

Respondent asserts that Respondent was unaware of a release of petroleum product from Respondent's facility into the sanitary sewer until Complainant notified Respondent of the sanitary sewer overflow on Friday evening, March 16, 2007.  Respondent further asserts that Respondent mobilized cleanup crews and began removing the black, sludge-like substance and impacted soils on Saturday, March 17, 2007, and that Respondent's response efforts continued to completion.

 

8.         On September 25, 2006, the United States of America, the State of Indiana, and the City of Indianapolis, Indiana, a municipal corporation, entered into a Consent Decree intended, in part, to prevent the sanitary sewer overflows in the City of Indianapolis sewer collection system.

 

9.         On May 18, 2007, the City of Indianapolis issued a Notice of Violation to Respondent which, in part, was for the untreated stormwater and oil that was discharged from the Site on or about March 15, 2007, in violation of the Sewers and Sewage Disposal Ordinance.  The City of Indianapolis is negotiating resolution of these violations with the Respondent which is expected to include an agreement on corrective measures to prevent a recurrence of the violations.

 

10.       Respondent indicated in its February 14, 2008 submittal in response to the Notice of Violation that it cooperated and assisted IDEM and the City of Indianapolis in the response efforts even though Respondent initially believed, based on the initial inspection of the manholes where sewage overflowed, that the overflow material resembled sewage and restaurant grease rather than ESI's product.  The clean up at the overflow sites is now complete and ESI submitted a final report of the clean-up activities to IDEM's State Cleanup group on August 29, 2007.  IDEM staff has indicated that the remediation achieved the required clean-up levels for the constituents of concern, and it is expected that after the report has passed a technical review of laboratory data quality, and after IDEM has issued and been paid on the invoice for IDEM's oversight of the remediation, IDEM is expected to issue a No Further Action letter to Respondent.  IDEM expects the invoice for IDEM's oversight of the remediation will amount to approximately $16,298.

 

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 Complainant or Complainant’s delegate, and has been received by Respondent.  This Agreed Order shall have no force or effect until the Effective Date.

 

2.         Respondent shall comply with 327 IAC 5-18-2, IC 13-30-2-1, 327 IAC 5-16-4, Attachment B of the Indianapolis NPDES Permit No. IN 0023183, 327 IAC 5-2-2, 327 IAC 2-1-6, IC 13-18-4-5, and 327 IAC 2-6.1-7.

 

3.         Respondent is assessed a civil penalty of Ten Thousand Five Hundred Dollars ($10,500).  The civil penalty shall be paid in the following manner: $2,625 shall be paid within 30 days of the Effective Date; $2,625 shall be pail within 120 days of the Effective Date; $2,625 shall be paid within 210 days of the Effective Date; and the final $2,625 shall be paid within 300 days of the Effective Date.  All payments shall be due and payable to the Environmental Management Special Fund.  In the event that any civil penalty payment is not paid by the due date, 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.

 

4.         The civil penalty is payable by check to the “Environmental Management Special Fund.”  The checks shall include the Case Number of this action and shall be mailed to:

 

Indiana Department of Environmental Management

Cashier – Mail Code 50-10C

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

5.         This Agreed Order shall apply to and be binding upon Respondent and his/her/its successors and assigns.  Respondent’s signatories to this Agreed Order certify that they are fully authorized to execute this Agreed Order and legally bind the party they represent.  No change in ownership, corporate, or partnership status of Respondent shall in any way alter its status or responsibilities under this Agreed Order.

 

6.         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 this Agreed Order did not contain the invalid terms.

 

7.         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.

 

8.         This Agreed Order is not and shall not be interpreted to be a permit or a modification of an existing permit.  This Agreed Order, and IDEM’s review or approval of any submittal made by Respondent pursuant to this Agreed Order, shall not in any way relieve Respondent of its obligation to comply with the requirements of its applicable permit or any applicable Federal or State law or regulation.

 

9.         Complainant does not, by its approval of this Agreed Order, warrant or aver in any manner that Respondent’s compliance with any aspect of this Agreed Order will result in compliance with the provisions of any permit, order, or any applicable Federal or State law or regulation.  Additionally, IDEM or anyone acting on its behalf shall not be held liable for any costs or penalties Respondents may incur as a result of Respondent’s efforts to comply with this Agreed Order.

 

10.       Nothing in this Agreed Order shall prevent or limit IDEM’s rights to obtain penalties or injunctive relief under any applicable Federal or State law or regulation, except that IDEM may not, and hereby waives its right to, seek additional civil penalties for the same violations specified in the NOV.

 

11.       Nothing in this Agreed Order shall prevent IDEM [or anyone acting on its behalf] from communicating with the EPA or any other agency or entity about any matters relating to this enforcement action.  IDEM or anyone acting on its behalf shall not be held liable for any costs or penalties Respondent may incur as a result of such communications with the EPA or any other agency or entity.

 

12.       This Agreed Order shall remain in effect until Respondent has complied with all terms and conditions of Order Paragraph Nos. 3 and 4 and IDEM issues a Resolution of Case letter.

 

 

TECHNICAL RECOMMENDATION:

 

RESPONDENT:

Department of Environmental Management

 

Ecological Systems, Inc.

 

 

 

By:

 

 

By:

 

 

Mark W. Stanifer, Chief

 

Printed:

 

 

Water Enforcement Section

 

Title:

 

 

Office of Enforcement

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

 

 

 

COUNSEL FOR COMPLAINANT:

 

COUNSEL FOR RESPONDENT:

For the Department of Environmental Management

 

 

 

 

 

By:

 

 

By:

 

 

 

 

 

 

 

Deputy Attorney General

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

 

DAY OF

 

, 2008.

 

 

For the Commissioner:

 

 

 

Signed on August 21, 2008

 

Robert B. Keene

 

Assistant Commissioner

 

Office of Legal Counsel and Enforcement