STATE
OF INDIANA |
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BEFORE
THE INDIANA DEPARTMENT |
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COMMISSIONER
OF THE DEPARTMENT Complainant, v. MECK’S
WHISPERING PINES II, LLC, 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.
Meck’s Whispering Pines II, LLC (Respondent), owns/operates the Meck’s Whispering Pines Mobile Home Park Wastewater Treatment
Plant, located at 340 East Levi Lee Road, Warsaw, Kosciusko County, Indiana (the
Site).
3.
Respondent is authorized by its
National Pollutant Discharge Elimination System (NPDES) Permit No. IN0054704 (the
Permit), to discharge wastewater treated in accordance with the terms and
conditions of the NPDES Permit from its Wastewater Treatment Plant (WWTP) into Heiman
Ditch, via Outfall 001.
4.
IDEM has jurisdiction over the
parties and the subject matter of this action pursuant to IC 13-30-3.
5.
Pursuant to IC 13-30-3-3, IDEM
issued a Notice of Violation (NOV) via Certified Mail/personal service to:
Cogency Global Inc, Registered Agent |
Kwame Granderson, Managing Partner |
Meck’s Whispering Pines II, LLC |
FTI Property Management, Inc. |
9221 Crawfordsville Rd |
316 West 2nd Street, Suite 1104 |
Indianapolis, IN 46234 |
Los Angeles, CA 90012 |
6.
During an investigation on June 9,
2021, conducted by a representative of IDEM, violations were found, as
described below.
7.
327 Indiana Administrative Code
(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 Indiana Code (IC) 13 and is grounds for enforcement action by
IDEM.
8.
Pursuant to Part I.A.1 of the
Permit, the permittee is required to comply with the monitoring requirements
contained in the Permit, including effluent limitations.
Discharge
Monitoring Reports (DMRs) and Monthly Reports of Operation (MROs) submitted by
Respondent for the period of July 2020 through
June 2021 revealed violations of effluent limitations contained in Part I.A.1
of the Permit as follows:
A.
The maximum weekly average loading
limitation for total suspended solids (TSS) was exceeded during July, October, November,
and December 2020, and March, April, May, June, and July 2021.
B.
The monthly average loading
limitation for TSS was exceeded during October 2020, and April, May, June, and
July 2021.
C.
The maximum weekly average concentration
limitation for TSS was exceeded during July, October, November, and December
2020, and March, April, May, June, and July 2021.
D.
The monthly average concentration
limitation for TSS was exceeded during July and October 2020, and March, April,
May, June, and July 2021.
E.
The monthly average minimum percent
removal for TSS was not met during July, October and December 2020, and January,
March, April, May, June, and July 2021.
F.
The maximum weekly average loading
limitation for ammonia (as nitrogen) was exceeded during October 2020, and January,
February, March, April, May, June, and July 2021.
G.
The monthly average loading
limitation for ammonia (as nitrogen) was exceeded during October 2020, and January,
February, March, April, May, June, and July 2021.
H.
The maximum weekly average concentration
limitation for ammonia (as nitrogen) was exceeded during October 2020, and January,
February, March, April, May, June, and July 2021.
I.
The monthly average concentration
limitation for ammonia (as nitrogen) was exceeded during October 2020, and January,
February, March, April, May, June, and July 2021.
J.
The maximum weekly average loading
limitation for biochemical oxygen demand (BOD) was exceeded during April, May, June,
and July 2021.
K.
The monthly average loading
limitation for BOD was exceeded during April, May, June, and July 2021.
L.
The maximum weekly average
concentration limitation for BOD was exceeded during October 2020, and April,
May, June, and July 2021.
M.
The monthly average concentration
limitation for BOD was exceeded during April, May, June, and July 2021.
N.
The monthly average minimum percent
removal for BOD was not met during April, May, June, and July 2021.
O.
The daily minimum concentration for
dissolved oxygen (DO) was not met during April, May, June, and July 2021.
P.
The daily maximum concentration
limitation for E. coli was exceeded during October 2020, and April, May, June, and
July 2021.
Q.
The monthly geometric mean limitation
for E. coli was exceeded during October 2020, and May, June, and July 2021.
Respondent failed
to comply with the effluent limitations from Outfall 001 contained in the Permit,
in violation of Part
I.A.1 of the Permit.
9.
Pursuant to 327 IAC 5-2-8(7) and
Part II.A.16 of the Permit, the permittee shall allow the Commissioner, or an
authorized representative, upon the presentation of credentials and other
documents as may be required by law, to:
a)
Enter upon the permittee’s premises
where a point source, regulated facility, or activity is located or conducted,
or where records must be kept pursuant to the conditions of this permit;
b)
Have access to and copy, at
reasonable times, any records that must be kept under the terms and conditions
of this permit;
c)
Inspect at reasonable times any facilities,
equipment or methods (including monitoring and control
equipment), practices, or operations regulated or required pursuant to this
permit; and,
d)
Sample or monitor at reasonable
times, any discharge of pollutants or internal wastestreams
for the purposes of evaluating compliance with the permit or as otherwise
authorized.
During the
inspection on June 9, 2021, IDEM staff observed and documented that the permitted
outfall had no discharge, the outfall pipe identified by previous ownership is
not the outfall pipe and the actual outfall pipe location was unknown at the
time of the inspection. In addition, the receiving stream is not accessible for
inspection, in violation of 327 IAC 5-2-8(7) and Part II.A.16 of the Permit.
10.
Pursuant to 327 IAC 5-2-8(9) and Part
II.B.1 of the Permit, the permittee shall at all times
maintain in good working order and efficiently operate all facilities, systems and
related appurtenances for collection and treatment that are:
a)
Installed and used by the permittee;
and,
b)
Necessary for achieving compliance with
the terms and conditions of the permit.
Pursuant to Part
II.B.1.b. of the Permit, the permittee shall operate the permitted facility in
a manner which will minimize upsets and discharges of excessive pollutants.
During the inspection
on June 9, 2021, IDEM staff observed and documented Respondent
failed to operate the facility in a manner which will minimize discharges of
excessive pollutants, specifically:
· one (1) of the two (2) Sequential Batch Reactors (SBR) has
not been operable since February 2021;
· grey wastewater with visible black floc was flowing through
the UV chamber prior to discharge;
· the blowers were not supplying enough air to sustain the biomass
in the operable SBR;
· the influent lift station had not been identified;
· the rotary sludge press was out of service;
· the man lift and the perimeter of
the SBR tanks lacked a guard rail;
· the safety grating on the walking surface of the SBR tanks
was rusted and several of the support bars had failed; and,
· 220 volt lines and fuses were exposed in the blower room, in violation
of 327 IAC 5-2-8(9), Part II.B.1, and Part II.B.1.b. of the Permit.
Each in violation of 327 IAC 5-2-8(9) and Part II.B.1 and
Part II.B.1.b of the Permit.
11.
On February 2, 2021, and June 18,
2021, IDEM sent Inspection Summary Letter(s) to Respondent outlining violations
at the WWTP. The letters required a response detailing
actions taken to correct the violations. IDEM received responses to the
letters explaining compliance actions Respondent took or would take to address
the violations. However, the violations noted above continue at the WWTP.
12.
On October 26, 2021, IDEM received
compliance actions Respondent has taken to address the violations cited in Paragraphs
8-10 above. However, all noncompliance has not been resolved at this time.
13.
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 8 through 10 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, Respondent shall correct all safety concerns
identified in the June 18, 2021, Inspection Summary/Enforcement Referral
(attached).
4.
Within 60 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 with its
Permit, specifically including the actions Respondent will take to:
A.
Achieve and maintain compliance with effluent limitations
contained in the Permit, specifically TSS, ammonia (as nitrogen), BOD, DO and
E. coli;
B.
Repair or replace rotary sludge press, inoperable SBR, and
all blowers;
C.
Assure proper removal, storage and disposal of sludge solids;
D.
Identify influent lift station, develop a maintenance schedule and add an alarm:
E.
Locate Outfall 001 pipe and provide adequate access to
the Outfall;
F.
Submit a complete NPDES Permit Modification request to
the NPDES Permit Section for the identification of new or existing equipment that
impacts effluent limitations, monitoring requirements, or other conditions set
forth by the permit if necessary;
G.
Develop and implement a preventative maintenance program
for WWTP equipment, and document all maintenance (preventative and repair) in a
permanent record;
H.
Develop and implement a preventative maintenance program
for the sanitary sewer collection system, which includes methods and milestone
dates for locating and eliminating sources of inflow and infiltration (I/I) in
the sewer system; and,
I.
Comply with reporting requirements of the permit.
The CP shall include an
implementation and completion schedule, including specific milestone dates.
Respondent shall notify IDEM in
writing of variations to the approved CP.
5.
Respondent
shall, after completion of the work required pursuant to the approved CP from
Paragraph 4 above, demonstrate 12 consecutive months of compliance (Compliance Demonstration)
with the terms and conditions of the Permit.
6.
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.
The AAP, if required, shall include an implementation and completion schedule,
including specific milestone dates.
7.
The plans required by Order Paragraphs
4 and 6 are subject to IDEM approval. In the event IDEM determines that any
plan or any modified 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 seek civil enforcement of this Order.
8.
Respondent,
upon receipt of written notification from IDEM, shall immediately implement the
approved plan(s) and adhere to the milestone dates therein. The approved CP and
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 5
above, will re-start. Failure to achieve compliance at the conclusion of work
under an AAP may subject Respondent to additional enforcement action.
9.
Beginning
with the first calendar quarter following the Effective Date, Respondent shall submit to IDEM a written progress
report within 10 days of the end of each calendar quarter, which identifies the
compliance actions implemented during each quarter ending on March 31st,
June 30th, September 30th, and December 31st until
completion of the CP or AAP.
10.
Beginning
on the Effective Date and continuing until the successful completion of the approved
CP, Respondent shall, at all times, operate its
existing WWTP as efficiently and effectively as possible.
11.
All submittals required by this
Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall
be sent to:
Grant Chaddock, Enforcement Case
Manager |
Office of Water Quality – IGCN
1255 |
Indiana Department of Environmental
Management |
100 North Senate Avenue |
Indianapolis, IN 46204-2251 |
12.
Respondent is assessed and agrees to
pay a civil penalty of Six Thousand Six Hundred Ninety-Three Dollars ($6,693). 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.”
13.
In the event the terms and
conditions of the following paragraphs are violated, IDEM may assess and Respondent shall pay the corresponding stipulated
penalty:
Paragraph |
Violation |
Stipulated
Penalty |
4 |
Failure to submit the CP within the
required time period. |
$250 per week late, or part
thereof. |
5 |
For violations of terms and
conditions of the Permit during the Compliance Demonstration. |
$400 per violation |
6 |
Failure to submit the AAP, if
required, within the given time period. |
$500 per week late, or part thereof. |
7 |
Failure to modify the CP and/or AAP,
if required, within the given time period. |
$500 per week late, or part
thereof. |
8 |
Failure to meet and/or implement
any milestone date set forth in the approved CP or AAP. |
$500 per week late, or part thereof. |
9 |
Failure to
submit to IDEM a written progress report within 10 days of each calendar quarter. |
$150 per week late, or part
thereof. |
10 |
Failure to operate the WWTP as
efficiently and effectively as possible prior to Compliance Demonstration. |
$200 per violation. |
14.
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.
15.
Civil and stipulated penalties are
payable by check to the “Environmental Management Special Fund.” Checks shall
include the Case Number 2021-28039-W of this action and shall be mailed to:
Indiana Department of Environmental Management |
Accounts Receivable |
IGCN, Room 1340 |
100 North Senate Avenue |
Indianapolis, Indiana 46204 |
16.
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.
17.
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.
18.
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.
19.
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.
20.
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.
21.
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.
22.
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.
23.
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.
24.
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.
TECHNICAL RECOMMENDATION: |
RESPONDENT: |
Department of Environmental
Management |
Meck’s Whispering Pines II, LLC |
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By: __________________________ |
By: ________________________ |
Amari
Farren, Chief |
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Water
Enforcement Section |
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Surface Water, Operations & |
Printed: _____________________ |
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 December 15, 2021 |
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Martha Clark Mettler |
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Assistant Commissioner |
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Office of Water Quality |