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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. MORGAN
FOODS 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 Indiana created by IC 13-13-1-1.
2.
Morgan Foods Inc. (Respondent),
owns/operates the food canning and processing facility that includes a
Wastewater Treatment Plant (WWTP) and a stormwater outfall, located at 90 West
Morgan St., Austin, Scott County, Indiana (the Site).
3.
Respondent is authorized by Rule 6
NPDES Permit No. INRM0087 (Rule 6 Permit), to discharge stormwater exposed to
industrial activities in accordance with the terms and conditions of the Rule 6
Permit and the requirements under 327 Indiana Administrative Code (IAC) 15-6
into Stink Ditch Creek from Outfall 003.
4.
Respondent is authorized by National
Pollutant Discharge Elimination System (NPDES) Permit Number IN0021911 (the
Permit) to discharge wastewater treated in accordance with the terms and conditions
of the Permit from the Wastewater Treatment Plant into an unnamed tributary of
the Muscatatuck River via Outfall 001.
5.
IDEM has jurisdiction over the
parties and the subject matter of this action pursuant to IC 13-30-3.
6.
Pursuant to IC 13-30-3-3, IDEM
issued a Notice of Violation (NOV) on January 7, 2021 via
Certified Mail and subsequently sent an amended NOV to:
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Louis Gottsponer Jr., President |
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Morgan Foods Inc. |
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90 West Morgan Street |
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Austin, Indiana 47102 |
7.
During an investigation conducted by
a representative of IDEM, violations were found, as described below.
8.
327 IAC
5-2-8(1), states the permittee shall comply
with all terms and conditions of the Permit. Any permit noncompliance
constitutes a violation of the Clean Water Act and IC 13 and is grounds for enforcement
action by IDEM.
9.
Pursuant to IC 13-18-4-5, a person
may not: (1) throw, run, drain, or otherwise dispose; or (2) cause, permit, or
suffer to be thrown, run, drained, allowed to seep, or otherwise disposed; into
any of the streams or waters of Indiana any organic or inorganic matter that
causes or contributes to a polluted condition of any streams or waters of Indiana.
Pursuant to IC
13-30-2-1(1), it is unlawful for any person to discharge, emit, cause or allow any contaminant or waste, including any noxious
odor, either alone or in combination with contaminant from other sources in the
environment in any form that causes or would cause pollution that violates or
would violate rules, standards, or discharges or emission requirements adopted
by the appropriate board under the environmental management laws.
Pursuant to 327
IAC 2-1-6(a)(1), all surface 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 do any of the following:
a)
Will settle to form putrescent or
otherwise objectionable deposits;
b)
Are in amounts sufficient to be unsightly
or deleterious;
c)
Produce color, visible oil sheen, odor,
or other conditions in such degree as to create a nuisance;
d)
Are in concentrations or
combinations that will cause or contribute to the growth of aquatic plants or
algae to such degree as to create a nuisance, be unsightly, or otherwise impair
the designated uses; or
e)
Are in amounts sufficient to be
acutely toxic to, or to otherwise severely injure or kill aquatic life, other
animals, plants, or humans.
During an inspection
on August 28, 2020, IDEM staff observed and documented the discharge from
Outfall 003 to Stink Ditch Creek had a blackish-gray tint with a putrescent
odor caused from an overflow/bypass of process wastewater at the Site, in
violation of IC 13-18-4-5, IC 13-30-2-1(1), and 327 IAC 2-1-6(a)(1).
During an
inspection on October 6, 2020, IDEM staff observed and documented the discharge
from Outfall 003 to Stink Ditch Creek appeared grayish in color, with a slight
sheen, nauseous odor, and contained foam, in violation of IC 13-18-4-5, IC
13-30-2-1(1), and 327 IAC 2-1-6(a)(1).
10.
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 from IDEM prior
to the discharge.
During the
inspections on August 28 and October 6, 2020, IDEM staff observed and documented
blackish-gray wastewater and grayish wastewater, respectively, discharging into
Stink Ditch Creek from Respondent’s storm water Outfall 003, in violation of 327
IAC 5-2-2. Neither the NDPES Permit nor the Rule 6
Permit authorize the discharge of process wastewater from Outfall 003.
In November of
2020, Respondent installed a catch basin at Outfall 003 that redirects flow
back into the wastewater treatment facility except in high volume conditions
such as rain events. The catch basin was approved by IDEM.
On March 22,
2021, Respondent removed the sump pump placed in Stink Ditch Creek.
11.
Pursuant to 327 IAC 5-2-8(12)(D) and
Part II.B.2 of the Permit, bypassing is prohibited, and the Commissioner may
take enforcement action against a permittee for bypass unless certain
conditions are met.
On August 17,
2020, in response to a catastrophic mechanical failure, Respondent installed
Caterpillar pumps with level sensors to bypass the primary influent lift
station and pump process wastewater directly into the equalization basin,
diverting around the screening treatment of the wastewater treatment plant.
According to Respondent, the level sensor for the second pump was set too high.
Before the process wastewater influent reached the second pump sensor, the
influent backflowed from hydrostatic pressure out of
a broken manhole. The bypass/overflow into the manhole ultimately discharged to
Outfall 003, in violation of 327 IAC 5-2-8(12)(D) and Part II.B.2 of the Permit.
12.
Pursuant to 327 IAC 5-2-8(8), and Part
II.B.1 of the Permit, Permittee is required to maintain in good working order
and efficiently operate all facilities and systems (and related appurtenances)
for collections and treatment that are: (1) installed or used by the permittee;
and (2) necessary for achieving compliance with the terms and conditions of the
Permit.
On August 17,
2020, Respondent had a mechanical failure at their primary influent lift station.
The failure was caused by steel cans of food and a section of steel rebar pipe
entering the sewer drains that flow into the lift station. Respondent failed to
maintain the wastewater treatment facilities in good working order, in violation
of 327 IAC 5-2-8(8), and Part II.B.1 of the Permit.
Since the August
17, 2020 event, Respondent has conducted staff trainings
to emphasize that placing debris into the sewer drains is prohibited and is a
disciplinary offense.
13.
On September 14 and October 16, 2020,
IDEM sent Inspection Summary Letter(s) to Respondent outlining violations at
the Site. The letter sent on October 16 required a response detailing
actions taken to correct the violations. IDEM received responses to the
letter(s) explaining compliance actions Respondent took or would take to
address the violations.
14.
Orders of the Commissioner are
subject to administrative review by the Office of Environmental Adjudication
under IC 4-21.5; however, in recognition of the settlement reached, Respondent
acknowledges notice of this right and 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 adopted by Complainant or Complainant’s delegate
(as evidenced by signature), and the adopted Agreed Order has been received by
Respondent. This Agreed Order shall have no force or effect until the Effective
Date. In addition to addressing the violations cited in Paragraphs 9 through 12
of the Findings of Fact above, this Agreed Order also addresses any additional
violations of these same rules that may have occurred subsequent
to the issuance of the NOV and prior to the Effective Date.
2.
Respondent shall comply with rules
and statutes listed in the findings above at issue.
3.
Within 30 days of the Effective Date
and continuing monthly, Respondent shall sample monthly for all parameters
presently monitored as required by the Rule 6 Permit with the addition of
Ammonia.
Respondent shall notify
IDEM for any parameter values monitored that are greater than or equal to the
level of concern developed by the EPA (Attachment A).
Respondent shall
perform all sampling and reporting requirements in this paragraph until the
successful completion of the 12-month Compliance Demonstration as specified by
Order Paragraph 7 below.
4.
Within 30 days of the Effective Date, Respondent shall
develop and submit to IDEM for approval an updated Wastewater Treatment Facility
Operations and Maintenance Manual (Manual) to include language regarding new
treatment units.
Respondent shall notify IDEM in
writing of variations to the approved Manual.
5.
Immediately upon
the Effective Date, Respondent shall conduct weekly inspections of Outfall 003 and
visually inspect the catch basin during or immediately following a rainfall
event. Respondent shall maintain records of the inspections and provide them to
IDEM upon request.
6.
Within 30 days
of the Effective Date, Respondent shall submit documentation of the trainings
noted in Paragraph 12 of the Findings of Fact above.
7.
Respondent
shall, after submission of the Manual required pursuant to Paragraph 4 above,
demonstrate 12 consecutive months of compliance (Compliance Demonstration) with
the terms and conditions of the Permit
and the Rule 6 Permit.
Respondent shall notify IDEM of any cross-contamination leading to
Outfall 003 discovered during the Compliance Demonstration and propose
corrective action to eliminate the cross-contamination.
8.
In
the event that violation(s)
occur during the Compliance Demonstration, within 30 days of the violation, Respondent
shall develop and submit to IDEM, for approval, an Additional Action Plan (AAP)
which identifies the additional actions that Respondent will take to achieve
and maintain compliance with the terms and conditions of the Permit and the
Rule 6 Permit. The AAP, if required, shall include an implementation and completion
schedule, including specific milestone dates.
9.
The documents required by Order Paragraphs
4 and 8 are subject to IDEM approval. In the event IDEM determines that any document
or any modified document submitted by Respondent is deficient or otherwise
unacceptable, Respondent shall revise and resubmit the document to IDEM in
accordance with IDEM’s notice. After three submissions of such document by
Respondent, IDEM may seek civil enforcement of this Order.
10.
Respondent,
upon receipt of written notification from IDEM, shall immediately implement the
approved plan(s) and adhere to the milestone dates therein. The approved AAP
shall be incorporated into the Agreed Order and shall be deemed an enforceable
part thereof.
Following completion of the actions
included in the AAP, the 12 month Compliance Demonstration,
as specified in Paragraph 7 above, will re-start. Failure to achieve compliance
at the conclusion of work under an AAP may subject Respondent to additional
enforcement action.
11.
Beginning
on the Effective Date and continuing until the successful submission of the Manual,
Respondent shall, at all times, maintain in good working order and efficiently operate
all facilities and systems (and related appurtenances) for the collection and
treatment which are installed or used by the permittee
and which are necessary for achieving compliance with the terms and conditions
of the Permit and the Rule 6 Permit.
12.
All submittals required by this
Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall
be sent to:
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Grant Chaddock, Enforcement Case
Manager |
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Office of Water Quality – IGCN 1255 |
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Indiana Department of Environmental
Management |
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100 North Senate Avenue |
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Indianapolis, IN 46204-2251 |
13.
Respondent is assessed and agrees to
pay a civil penalty of Twenty-Five Thousand Two Hundred Seventy-Five Dollars ($25,275).
Said penalty amount shall be due and payable to the “Environmental Management
Special Fund” within 30 days of the Effective Date, the 30th day
being a “Due Date.”
14.
In the event the terms and conditions
of the following paragraphs are violated, IDEM may assess
and Respondent shall pay the corresponding stipulated penalty:
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Paragraph |
Violation |
Stipulated
Penalty |
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3 |
Failure
to sample parameters at the frequency required by this paragraph. |
$400 per
violation. |
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3 |
Failure
to report parameters as required by this paragraph. |
$400 per
violation. |
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4 |
Failure to submit the Manual within
the required time period. |
$250 per week late, or part
thereof. |
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5 |
Failure to conduct the inspections
as required by this paragraph. |
$300 per violation. |
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5 |
Failure to maintain records of the
inspections and provide to IDEM upon request. |
$250 per violation. |
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6 |
Failure to submit documentation of
employee training within the required time period. |
$250 per week late, or part
thereof. |
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7 |
For violations of terms and
conditions of the Permit and the Rule 6 Permit during the Compliance
Demonstration. |
$400 per violation |
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7 |
Failure to comply with any or all of the requirements of this paragraph. |
$400 per violation. |
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8 |
Failure to submit the AAP, if required,
within the given time period. |
$500 per week late, or part thereof. |
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9 |
Failure to modify the updated
manual and/or AAP, if required, within the given time
period. |
$500 per week late, or part
thereof. |
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10 |
Failure to meet and/or implement
any milestone date set forth in the approved updated manual or AAP. |
$500 per week late, or part thereof. |
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11 |
Failure to operate as efficiently
as possible prior to Compliance Demonstration. |
$200 per violation. |
15.
Stipulated penalties shall be due
and payable no later than the 30th
day after Respondent receives written notice that IDEM has determined a
stipulated penalty is due, the 30th
day being a “Due Date.” IDEM may notify Respondent at any time that a
stipulated penalty is due. Failure to notify Respondent in writing in a timely
manner of a stipulated penalty assessment shall not waive IDEM’s right to collect
such stipulated penalty or preclude IDEM from seeking additional relief against
Respondent for violation of this Agreed Order. Neither assessment nor payment of stipulated penalties
shall preclude IDEM from seeking
additional relief against Respondent for a violation of this Agreed Order. Such additional relief includes any remedies or sanctions available
pursuant to Indiana law,
including, but not limited to, civil penalties pursuant to IC 13-30-4.
16.
Civil and stipulated penalties are
payable by check to the “Environmental Management Special Fund.” Checks shall include
the Case Number 2020-27472-W of this action and shall be mailed to:
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Indiana Department of Environmental Management |
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Accounts Receivable |
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IGCN, Room 1340 |
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100 North Senate Avenue |
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Indianapolis, Indiana 46204 |
17.
This Agreed Order shall apply to and
be binding upon Respondent, 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.
18.
In
the event that the monies due to IDEM pursuant to
this Agreed Order are not paid on or before their Due Date, Respondent shall
pay interest on the unpaid balance and any accrued interest at the rate established
by IC 24-4.6-1. The interest shall be computed as having accrued from the Due
Date until the date that Respondent pays any unpaid balance. The interest shall
continue to accrue on the first of each month until the civil penalty and any
interest accrued are paid in full. Such interest shall be payable to the “Environmental
Management Special Fund,” and shall be payable to IDEM in the manner specified
above.
19.
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.
20.
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.
21.
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 permits or any applicable Federal
or State law or regulation.
22.
Complainant does not, by his 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.
23.
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.
24.
Nothing in this Agreed Order shall
prevent IDEM (or anyone acting on its behalf) from communicating with the United
States Environmental Protection Agency (US 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 US
EPA or any other agency or entity.
25.
This Agreed Order shall remain in
effect until Respondent has complied with the terms and conditions of this
Agreed Order and IDEM issues a Resolution of Case (close out) letter to Respondent.
REMAINDER OF PAGE INTENTIONALLY LEFT
BLANK.
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TECHNICAL RECOMMENDATION: |
RESPONDENT: |
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Department of Environmental
Management |
Morgan Foods Inc. |
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By: __________________________ |
By: ________________________ |
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Amari
Farren, Chief |
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Water
Enforcement Section |
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Surface Water, Operations & |
Printed: _____________________ |
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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 RESPONDENT: |
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By: ________________________ |
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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 November 1, 2021 |
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Martha Clark Mettler |
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Assistant Commissioner |
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Office of Water Quality |