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STATE OF |
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BEFORE THE
INDIANA DEPARTMENT |
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COMMISSIONER
OF THE DEPARTMENT Complainant, v. DAVE O’MARA
CONTRACTOR, INC., Respondent. |
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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 Indiana Code (“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 Dave O’Mara Contractor, Inc. (“Respondent”). Respondent conducted business with the Town
of
3.
Respondent was contracted by the Town to repair and/or
replace drinking water lines near the drinking water plant, located on
4.
IDEM has jurisdiction over the parties and subject matter of
this action.
5.
Pursuant to IC 13-30-3-3, on December 12, 2008, IDEM issued
a Notice of Violation to the Town, Case No. 2008-17957-W and Respondent, Case
No. 2008-17961-W, via Certified Mail to:
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Rick Bush,
Town Board President |
Dave O’Mara, President |
David J. O’Mara, Registered Agent |
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Town of |
Dave O’Mara Contractor, Inc. |
Dave O’Mara Contractor, Inc. |
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1100 O & M Avenue |
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6.
The Town
and Respondent have agreed that Respondent will resolve the issues identified
herein by entry into this Agreed Order.
Therefore, the Notice of Violation previously issued to the Town, Case
No. 2008-17957-W, will be dismissed.
7.
During an investigation on July 16, 2008, conducted by representatives
of IDEM and the Indiana Department of Natural Resources (“IDNR”), the following
violations were found:
8.
Pursuant to 327 Indiana Administrative Code (“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 National Pollutant Discharge Elimination System (“NPDES”)
permit obtained prior to discharge.
9.
Representatives of IDEM’s Office of Environmental Response and
IDNR conducted an investigation of a release of an unknown amount of drinking
water containing chlorine, which, at the time of the investigation, was being
purged from the water lines by Respondent at the Site. The chlorine contaminated water was
discharged from the Site, flowed into the storm drain, into Carthage Creek, and
then flowed to the
10.
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, contain the spill, if possible, to prevent additional
spilled material from entering the waters of the State; undertake or cause
others to undertake activities needed to accomplish a spill response; and as
soon as possible, but within two (2) hours of discovery, communicate a spill
report to the Department of Environmental Management, Office of Environmental
Response.
11.
A reportable spill of an unknown amount of the water
containing pollutants discharged from the Site for an undetermined period of
time; and was not properly contained; and/or responded to; and/or reported by Respondent;
in violation of 327 IAC 2-6.1-7.
12.
On May 29, 2009, Respondent developed and submitted a Spill
Response Plan (“SRP”) to IDEM for review in the event of future unpermitted
discharges of chlorinated water related to purging of drinking water system
lines, subject to a contract between Respondent and the Town for
repair/replacement of the Town’s drinking water system lines.
13.
On June 10, 2009, IDEM approved the SRP, which is outlined
in Attachment “A” of this Agreed Order.
14.
Pursuant to 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 or which would violate rules, standards, or discharge or emission
requirements adopted by the appropriate board under the environmental
management laws.
15.
Respondent caused and/or allowed the discharge of the water containing
pollutants in amounts sufficient to be classified as contaminants or waste from
the Site into the environment, in violation of 327 IAC 2-6.1-7, and thus
violating IC 13-30-2-1(1).
16.
Pursuant to 327 IAC 2-1-6(a)(1), the following are minimum
water quality conditions, 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 human.
(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.
17.
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 1 and 3 of this chapter.
18.
An investigation by IDEM and IDNR revealed that the water containing
pollutants, which was discharged from the Site, caused, or contributed to, the
contamination of the waters of the State.
Specifically, approximately one hundred fifty (150) dead fish were
observed downstream from the discharge point where the chlorinated water
entered Carthage Creek, to where Carthage Creek flows to the Big Blue River, in
violation of 327 IAC 2-1-6(a)(1), and thus violating IC 13-30-2-1(1) and IC
13-18-4-5.
19.
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 statutes, rules, its SRP, and/or
permit condition listed in the findings above at issue.
3.
During activities where Respondent is contracted to perform
services to repair/replace drinking water lines for the Town, Respondent shall take
all necessary steps to prevent unpermitted discharges of chlorinated water into
the environment, including waters of the State, from the portion of the public
water supply distribution system that it has been designated to repair/replace.
4.
The approved SRP, as noted in Findings of Fact Paragraphs 12
and 13 above and outlined in Attachment “A”, was submitted by Respondent, shall
be incorporated into this Agreed Order and shall be deemed an enforceable part
thereof. Respondent shall immediately
implement the approved SRP and adhere to the requirements contained therein.
5.
All submittals required by this Agreed Order, unless
notified otherwise in writing, shall be sent to:
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Aletha Lenahan, Case Manager, Water Enforcement
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Indiana Department of Environmental
Management |
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Office of Water Quality – Mail Code 65-40 |
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Room N1255, |
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6.
Respondent is assessed a civil penalty of Nine Thousand Dollars
($9,000). Said penalty amount shall be
due and payable to the Environmental Management Special Fund within forty-five
(45) days of the Effective Date. In the
event that the civil penalty is not paid within forty-five (45) days of the
Effective 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.
7.
Respondent shall make a separate payment of One Hundred
Thirteen Dollars and Twenty-Four Cents ($113.24), in satisfaction of any
liability for damage to
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Attention
to: Restoration Biologist |
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IDNR
Division of Fish and Wildlife |
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Room W-273,
IGCS |
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8.
Civil penalties, as required by Order Paragraph 6 above, are
payable by check to the Environmental Management Special Fund. Payment shall include the Case Number “2008-17961-W”,
of this action and shall be mailed to:
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Cashiers
Office – Mail Code 50-10C |
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Indiana
Department of Environmental Management |
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9.
This Agreed Order shall apply to and be binding upon
Respondent and 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 parties they
represent. No change in ownership,
corporate, or partnership status of Respondent shall in any way alter it status
or responsibilities under this Agreed Order.
10.
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.
11.
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.
12.
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 their obligation to comply with the requirements
of their applicable permit or any applicable Federal or State law or
regulation.
13.
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 Respondent may incur
as a result of Respondent’s efforts to comply with this Agreed Order.
14.
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 Notice
of Violation.
15.
Nothing in this Agreed Order shall prevent IDEM, or anyone
acting on its behalf, from communicating with the United State Environmental
Protection Agency (“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
EPA or any other agency or entity.
16.
This Agreed Order resolves any liability of the Town for any
violations specified in the Notice of Violation and this Agreed Order. Upon Respondent’s payment of the civil
penalty, IDEM shall issue a Notice of Dismissal letter to the Town, Case No.
2008-17957-W, indicating that all violations specified in the Notice of
Violation issued on December 12, 2008, and this Agreed Order, have been
resolved.
17.
This Agreed Order shall remain in effect until Respondent has
complied with Order Paragraphs 3 through 8, at which time IDEM will issue a
Resolution of Case letter to Respondent.
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TECHNICAL
RECOMMENDATION: |
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RESPONDENT: |
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Department
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Dave O’Mara Contractor,
Inc. |
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By: |
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By: |
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Mark W. Stanifer, Chief |
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Printed: |
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Water
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Title: |
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Office
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COUNSEL
FOR COMPLAINANT: |
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COUNSEL
FOR RESPONDENT: |
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Department
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By: |
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By: |
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Deputy
Attorney General |
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Date: |
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APPROVED
AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT THIS |
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DAY OF |
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For
The Commissioner: |
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Signed on August 20, 2009 |
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Bruno
Pigott |
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Assistant
Commissioner |
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Office
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ATTACHMENT A
SPILL RESPONSE
PLAN
Water Line Replacement Work at Town of
1.
The names and
telephone numbers of persons who are identified by Respondent as responsible
for implementing the Spill Response Plan:
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Rob O’Mara |
(812) 592-0736 |
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Ted Westerman |
(812) 592-1316 |
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Clint Black |
(812) 592-0523 |
2.
Identification of
areas where potential spills can occur and their accompanying drainage points:
Work for the
Town of
Spills could
potentially occur at the hydrant(s) and insertion points for chlorine. Possible drainage points of spills will be
storm sewers and sanitary sewer drains, ditches and streams, or other private
property.
3.
Procedures to follow
in the event of a spill:
Turn off pumps and flow of water.
Create dikes
or berms to prevent flow into surface waters.
Employ
absorbent material.
Employ
dechlorination solution.
Review MSDS of
spilled material.
Identify
On-Scene Commander.
After cleanup,
collect spent absorbent material and place it into a leak proof container or
bag labeled with the contents and data.
Consult with regular waste handler for specific disposal requirements,
which shall include any required waster characterization.
IDEM
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(888) 233-7745
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Rush County Emergency
Management Agency
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(765)
932-8391
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Town of
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(765) 565-1234
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In case of a
large spill contact:
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(877)
999-7745
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Check for possible
health impacts to nearby persons, if any.
Identify
impacted ground and surface waters, if any.
Employ
dechlorination equipment to treat impacted water.
4.
Identification of
equipment and clean up materials to be used in the event of a spill:
Equipment
necessary for a particular release will vary, but may include:
Absorbent
material.
Dechlorination
equipment: solution and mixing device.
Pipefitting
tools.
Shovels.
Excavator.
5.
Procedures for
reporting the spill to:
A.
Any applicable local emergency or health authorities:
Contact above local contacts as
necessary.
B.
IDEM, in accordance
with 327 IAC 2-6.1.
Ascertain
whether a reportable spill has occurred
If necessary,
contact IDEM within two (2) hours