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STATE OF INDIANA |
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BEFORE
THE INDIANA DEPARTMENT |
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COMMISSIONER
OF THE DEPARTMENT Complainant, v. Michael Materna
d/b/a Materna Farms, 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 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 Michael Materna, d/b/a Materna Farms (Respondent), which owns and operates a
mint farming and distillation operation located at 8735 N 850 East, Walkerton, Starke
County, Indiana (the Site), with a principal business location at 407 W.
Plymouth Street in Hamlet, Indiana.
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:
Michael T. Materna, 407 W. Plymouth St.,
Hamlet, IN 46532.
5.
During
an investigation conducted from August 9, through August 19, 2010, by a
representative of IDEM, the following violations were found:
Pursuant
to 327 IAC 5-2-2, any discharge of pollutants into the waters of the state as a
point source discharge is prohibited unless in conformity with a valid NPDES
permit obtained prior to the discharge.
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.
During
the investigation, Respondent was observed by IDEM staff to be discharging
wastewater from its mint distillation operation into a roadside ditch tributary
to Robbins Ditch, without a valid NPDES permit obtained prior to the discharge,
in violation of 327 IAC 5-2-2. These
events caused or contributed to a polluted condition. Because 327 IAC 5-2-2 is a rule of the Water
Pollution Control Board, Respondent’s discharge of pollutants also was in
violation of IC 13-30-2-1.
6.
On
January 14, 2011 Respondent and IDEM staff met to discuss settlement of this
case. Further correspondence and
telephone communication was conducted.
7.
On
April 25, 2011, IDEM issued an NPDES permit to Respondent, with permit number
IN0063746, with an effective date of May 31, 2011.
8.
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 the statutes and rules listed in the findings above at issue.
3.
Within
thirty days of the Effective Date, Respondent shall develop and submit to IDEM
for approval a Compliance Plan (CP) which identifies actions that Respondent
will take to achieve and maintain compliance, specifically including the
actions Respondent will take to:
a.
Comply
with all NPDES permit requirements including flow measurement, effluent
limitations, recordkeeping, sampling and reporting (this item may be in the
form of an operation and maintenance manual); and
b.
Re-route
the discharge of boiler blowdown (which currently
goes onto the ground) to comingle with other wastestreams prior to discharge via
the permitted outfall point.
The CP shall include an implementation
and completion schedule, including specific milestone dates. This schedule should anticipate full
compliance with NPDES requirements upon initiation of discharge in 2011.
4.
Respondent
shall, upon discharging during the 2011 operating season (Performance Period),
demonstrate continuous compliance (Compliance Demonstration) with the requirements
of Paragraph 3 above, including thermal effluent limitations contained in its
NPDES Permit for the duration of the discharge season. During the Performance Period, Respondent
shall be subject to stipulated penalties, as specified in Paragraph 13 below. In the event that Respondent fails to make
the Compliance Demonstration, Respondent shall, within thirty days of becoming
aware that the Compliance Demonstration cannot be achieved, develop and submit
to IDEM, for approval, an Additional Action Plan which identifies the
additional actions that Respondent will take to achieve and maintain compliance
with the effluent limitations contained in its NPDES Permit. The Additional Action Plan, if required,
shall include an implementation and completion schedule, including specific
milestone dates.
5.
The
plans required by Paragraphs 3 and 4 above are 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.
6.
Respondent,
upon receipt of written notification from IDEM, shall immediately implement the
approved plan and adhere to the milestone dates therein. The approved CP and Additional Action Plan
shall be incorporated into the Agreed Order and shall be deemed an enforceable
part thereof. Failure by Respondent to
submit any plan by the specified date or to meet any of the milestones in the
approved plan will subject 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.
7.
Respondent
shall submit to IDEM a written report of progress or completion for each
milestone date included in the CP or Additional Action Plan.
8.
All
submittals required by this Agreed Order, unless Respondent is notified
otherwise in writing by IDEM, shall be sent to:
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Mark
Stanifer, Section Chief |
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Indiana
Department of Environmental Management |
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Office
of Water Quality – Mail Code 60-02W Water
Enforcement Section |
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100
North Senate Avenue, Room 1255 |
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Indianapolis,
IN 46204-2251 |
9.
Respondent
is assessed a civil penalty of Forty Thousand Forty Dollars ($40,040). Within thirty days of the Effective Date of
the Agreed Order, Respondent shall pay a portion of this penalty in the amount
of Eight Thousand Eight Dollars ($8008). Said penalty amount shall be due and payable
to the Environmental Management Special Fund.
In lieu of payment of the remaining $32,032 of the civil penalty,
Respondent shall perform and complete a Supplemental Environmental Project
(SEP). Respondent has not yet determined
the full cost of this SEP. Within sixty
days of completing this SEP, Respondent shall submit written notice and
documentation to IDEM which substantiates all actions taken or planned to be
taken, and costs incurred with respect to the SEP. In the event that the cost of the SEP is less
than $32,032, Respondent shall pay the
difference between the allowed SEP offset ($32,032) and the actual cost of the
SEP.
10.
As
a Supplemental Environmental Project, Respondent shall submit a complete SEP
application to IDEM within 60 days of the effective date that may include
multiple SEP proposals, including but not limited to:
a.
Installation
of a guardrail along County road 850 East, across from
Respondent’s plant site, to protect passing motorists from going off the road
and into the roadside ditch.
b.
Purchase,
install, maintain, and continuously operate a continuous (recording) temperature
monitor to determine the temperature of Respondent’s effluent prior to entering
the receiving stream.
c.
Relocate
the discharge point, to include off-stream mixing to co-mingle all of
Respondent’s wastestreams prior to discharge to Waters of the State. This shall include an effluent weir, with the
weir overflow to be the NPDES point of compliance, eliminating the need for an instream mixing zone.
The SEP proposal is subject to approval by IDEM,
following the procedure described in paragraphs 5 and 6 above.
11.
Upon
approval of the SEP proposal by IDEM, Respondent shall complete the SEP or SEPs
by no later than one year from the effective date.
12.
In
the event that Respondent does not complete the approved SEP within one year of
the effective date, the full amount of the civil penalty as stated in paragraph
9 above, plus interest established by IC 24-4.6-1-101 on the remaining amount,
less the portion of the civil penalty Respondent has already paid, will be due
within fifteen days from Respondent’s receipt of IDEM’s notice to pay. Interest, at the rate established by IC
24-4.6-1-101, shall be calculated on the amount due from the date which is
thirty days after the Effective Date until the full civil penalty is paid.
13.
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 |
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3 |
Failure to submit compliance plan
within the required time period. |
$200 per week late, or part thereof. |
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4 |
Failure to submit or modify the
Additional Action Plan, if required, within the given time period. |
$200 per week late, or part thereof. |
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4 |
Failure to comply with applicable
effluent limitations during the Performance Period. |
$500 per event. |
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5 |
Failure to submit a revised CP if
required. |
$200 per week late, or part thereof. |
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6 |
Failure to meet any milestone date
set forth in the approved CP. |
$100 per week late, or part thereof. |
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7 |
Failure to provide IDEM with a
written report of milestone completion. |
$300 per week late, or part thereof. |
14.
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, or in the case of violation of other provisions of this Agreed
Order, 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.
15.
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:
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Indiana
Department of Environmental Management |
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Cashier
– Mail Code 50-10C |
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100
North Senate Avenue |
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Indianapolis,
IN 46204-2251 |
16.
This
Agreed Order shall apply to and be binding upon Respondent and his successors
and assigns. Respondent’s signatories to this Agreed Order certify that he is
fully authorized to execute this Agreed Order and legally bind the party he
represents. No change in ownership,
corporate, or partnership status of Respondent shall in any way alter his
status or responsibilities under this Agreed Order.
17.
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.
18.
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.
19.
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 his
obligation to comply with the requirements of his applicable permits or any applicable
Federal or State law or regulation.
20.
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.
21.
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.
22.
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.
23.
This
Agreed Order shall remain in effect until Respondent has complied with all
terms and conditions of Order Paragraph Nos. 3 through 15 and IDEM issues a
Resolution of Case (close-out) letter.
REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
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TECHNICAL
RECOMMENDATION: |
RESPONDENT: |
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Department of
Environmental Management |
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By: ________________________ |
By: ________________________ |
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Mark
W. Stanifer, Chief |
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Water Enforcement Section |
Printed: _____________________ |
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Surface
Water, Operations and |
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Enforcement
Branch |
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Office of
Water Quality |
Title: _______________________ |
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Date: __________________ |
Date: _______________________ |
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COUNSEL FOR COMPLAINANT: |
COUNSEL FOR RESPONDENT: |
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For the Department of
Environmental Management |
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By: ____________________ |
By:
______________________ |
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Deputy
Attorney General |
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Date: _____________________ |
Date: _____________________ |
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APPROVED
AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT THIS ____ DAY OF ____________________, 20___ |
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For the
Commissioner: |
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Signed on
August 12, 2011. |
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Bruno
Pigott |
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Assistant Commissioner |
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Office of Water
Quality |