STATE OF INDIANA

COUNTY OF MARION

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BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v.

HANOVER GROUP, INC. d/b/a
AVON LAKES MHP,

Respondent.

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Case No. 2010-19397-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 Hanover Group, Inc. d/b/a Avon Lakes MHP (Respondent), which operates the facility located at 2119 Duck Lane, in Indianapolis, Hendricks County, Indiana (the Site).

 

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) via Certified Mail to:

 

Kenneth Sims, Director of Operations

Brett J. Miller, Registered Agent

Hanover Group, Inc.

Hanover Group, Inc.

112 Unalatchto Dr.

2700 Market Tower

Pendleton, IN 46064

10 West Market Street

 

Indianapolis, IN 46204

 

5.         Pursuant to 327 IAC 5-2-2, any discharge of pollutants into waters of the state as a point source discharge, is prohibited unless in conformity with a valid NPDES permit obtained prior to discharge.

 

6.         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 (2) hours of discovery, communicate a spill report to the Department of Environmental Management.

 

7.            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 which violates rules, standards, or discharge or emission requirements adopted by the appropriate board pursuant to this title.

 

8.            Respondent caused and/or allowed the discharge of sewage from a ruptured sewer pipe at the site which allowed raw sewage to be released to the West Fork of White Lick Creek on or about June 24, 2010, in violation 327 IAC 5-2-2.  Further investigation at the site revealed two manholes that routinely overflow to the West Fork of White Lick Creek, also in violation of 327 IAC 5-2-2.  Respondent has failed to conduct a spill response for both the ruptured sewer and manhole overflows, both of which caused pollution, a violation of  327 IAC 2-6.1-7, a rule adopted by the Water Pollution Control Board, therefore also in violation of IC 13-30-2-1.

 

9.         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.            Within sixty (60) days of the Effective Date, the Respondent shall develop and submit to IDEM for approval a “Compliance Plan” which identifies actions that Respondent has taken and will take to:

 

a.            repair and upgrade its collection system, specifically including the actions the Respondent will take to repair its lift station so it does not back up into the pipe causing raw sewage to discharge from the manholes.  All wastewater must be routed to the Hendricks County Regional Sewer District.

 

b.            ensure all future discharges are reported to IDEM in a timely manner pursuant to 327 IAC 2-6.1-5.

 

The Compliance Plan shall include an implementation and completion schedule, including specific milestone dates.

 

3.         The plan required by Paragraph 2 above is subject to IDEM approval. In the event IDEM determines that any plan submitted by Respondent is deficient or otherwise unacceptable, Respondent shall revise and resubmit the plan to IDEM in accordance with IDEM’s notice. After three submissions of such plan by Respondent, IDEM may modify and approve any such plan and Respondent must implement the plan as modified by IDEM.

 

4.            The Respondent, upon receipt of written notification from IDEM, shall immediately implement the approved plan and adhere to the milestone dates therein.  The approved Compliance Plan shall be incorporated into the Agreed Order and shall be deemed an enforceable part thereof.  Failure by the Respondent to submit any plan by the specified date, or to meet any of the milestones in the approved plan will subject the Respondent to stipulated penalties as described below.  Failure to achieve compliance at the conclusion of work under an Additional Action Plan will subject Respondent to additional enforcement action.

 

5.            All submittals required by this Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall be sent to:

 

Edward Judson, Enforcement Case Manager

Indiana Department of Environmental Management

Office of Water Quality – Mail Code 60-02W

100 North Senate Avenue, Room 1255

Indianapolis, IN 46204-2251

 

6.            Respondent is assessed a civil penalty of Six Thousand Dollars ($6,000).  Said penalty amount shall be due and payable to the Environmental Management Special Fund within 30 days of the Effective Date.  In the event that the civil penalty is not paid within 30 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.            In the event the terms and conditions of the following paragraphs are violated, Complainant may assess and Respondent shall pay a stipulated penalty in the following amount:

 

Paragraph

Violation

Stipulated Penalty

 

2

Failure to submit compliance plan within the required time period.

$500 per week late, or part thereof.

3

Failure to submit revised compliance plan after IDEM review.

$500 per week late, or part thereof.

4

Failure to adhere to approved compliance plan

$500 per violation

 

8.            Stipulated penalties shall be due and payable within 30 days after Respondent receives written notice that Complainant has determined a stipulated penalty is due.  Assessment and payment of stipulated penalties shall not preclude Complainant from seeking any additional relief against Respondent for violation of this Agreed Order.  In lieu of any of the stipulated penalties set out above, 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.

 

9.            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:

 

Indiana Department of Environmental Management

Cashier – Mail Code 50-10C

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

10.         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 party they represent.  No change in ownership, corporate, or partnership status of Respondent shall in any way alter their status or responsibilities under this Agreed Order.

 

11.         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.

 

12.         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.

 

13.         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.

 

14.         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.

 

15.         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.

 

16.         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.

 

17.         This Agreed Order shall remain in effect until Respondent has complied with all terms and conditions of Order Paragraph Nos. 3 through 9 and IDEM issues a Resolution of Case letter.

 

REMAINDER OF PAGE INTENTIONALLY LEFT BLANK

 

TECHNICAL RECOMMENDATION:

RESPONDENT:

Department of Environmental Management

 

 

By: ________________________

By:  ________________________

 

Mark W. Stanifer, Chief

 

 

Water Enforcement Section

Printed: ______________________

Office of Water Quality

 

 

Title: ________________________

 

 

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 _____________________, 20__.

 

 

For the Commissioner:

 

 

Signed on March 25, 2011

 

Bruno Pigott

 

Assistant Commissioner

 

Office of Water Quality