STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT
) SS: OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION )
COMMISSIONER OF THE DEPARTMENT )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
)
v. ) CAUSE NO. B-2354
)
)
CONAWAY COMMUNICATIONS CORP )
d/b/a DURA COAT SYSTEMS, INC., )
)
Respondent. )
AGREED ORDER
The Complainant and the 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.
I. FINDINGS OF FACT
1. Complainant is the Commissioner (hereinafter referred to as "Complainant") of the Indiana Department of Environmental Management, a department of the State of Indiana created by IC 13-13-1-1.
Ms Sandra Schram, President and Registered Agent
Conaway Communications d/b/a Dura Coat Systems, Inc.
P.O. Box 88
Peru, Indiana 46970
5. Pursuant to 327 IAC 5-15-6, the following conditions are incorporated into the Permit: Permit conditions specified in 327 IAC 5-2-8 (1), (2), (3), (7), (8), (9), (11), (13).
6. Pursuant to 327 IAC 5-2-8 and the Permit, you are required to do the following:
a. Comply with all terms and conditions of the permit.
b. Take all reasonable steps to minimize or correct any adverse
impact on the environment resulting from noncompliance with
the permit.
c. Allow the commissioner, or an authorized representative, to
enter the premises and have access to records, inspect the
premises or collect samples, at reasonable times and upon
presentation of appropriate credentials.
d. At all times maintain in good working order and efficiently
operate all facilities and systems (and related appurtenances) for
collection and treatment which are necessary for achieving
compliance with the terms and conditions of the permit.
e. Comply with the monitoring, recording, and reporting
requirements established in 327 IAC 5-2-13, 327 IAC 5-2-14,
and 327 IAC 5-2-15.
Failure to comply with any of these requirements, pursuant to 327 IAC 5-2-8, constitutes a violation of the Clean Water Act (CWA) and the Environmental Management Act (EMA) and the Permit.
7. Part I.C.3.a.1. of the Permit states that "The permittee shall not discharge pollutant parameters in concentrations and/or quantities that exceed the Discharge Limitations in Part I.A.1."
8. The Respondent exceeded permit effluent limits for Total Recoverable Zinc and Total Recoverable Copper. The Permit Effluent Discharge Limitation for Total Recoverable Zinc is 1.48 mg/l for the Monthly Average and 2.61 mg/l for Daily Maximum. The Permit Effluent Discharge Limitation for Total Recoverable Copper is 2.07 mg/l for the Monthly Average and 3.38 mg/l for Daily Maximum. The Respondent’s exceedences of these effluent limitations are summarized as follows:
|
Month |
Monthly Average (mg/l) |
Daily Maximum (mg/l) |
|
August 1997 |
Zinc (1.49) |
Zinc (4.29) |
|
September 1997 |
Zinc (4.32) |
Zinc (9.31) |
|
December 1997 |
Zinc (1.57) Copper (2.09) |
Zinc (3.18) Copper (10.4) |
|
Month |
Monthly Average (mg/l) |
Daily Maximum (mg/l) |
|
January 1998 |
Zinc (2.36) Copper (4.25) |
Zinc (7.72) Copper (12.4) |
|
September 1998 |
Copper (3.31) |
|
|
October 1998 |
Zinc (3.80) Copper (3.53) |
Zinc (6.76) Copper (3.74) |
|
November 1998 |
Zinc (4.50) Copper (2.94) |
Zinc (4.50) |
|
December 1998 |
Zinc (1.53) |
Zinc (3.08) Copper (3.74) |
|
January 1999 |
Zinc (4.8) |
Zinc (12.2) |
|
February 1999 |
Zinc (3.59) |
Zinc (24.7) |
|
July 1999 |
Zinc (1.94) Copper (33.8) |
Zinc (1.94) Copper (33.8) |
|
December 1999 |
Copper (2.32) |
Copper (2.36) |
9. Pursuant to 327 IAC 5-15-9 and 10, the permittee shall record and report the results of monitoring required under 327 IAC 5-2-13, 327 IAC 5-2-14 and 327 IAC 5-2-15.
10. Part I.A.1. of the Permit states, in substance, that the permittee is authorized to discharge from Outfall 001 and that such discharge shall be limited and monitored by the permittee as specified by the discharge limitations in the Permit.
11. Part I.C.2. of the Permit states, in substance that the permittee shall submit monitoring reports to IDEM, and the municipal treatment plant, containing results obtained during the previous month and shall be postmarked no later than the 28th day of the month following each completed monitoring period.
12. The Respondent failed to monitor for any effluent parameters as required by the Permit for February 1998 through August 1998.
13. The Respondent failed to monitor for Total Cyanide, Total Recoverable Cadmium, Total Recoverable Silver and Total Toxic Organics (TTO), which were to be monitored two (2) times per year, for 1997, 1998 and 1999.
14. The Respondent failed to monitor for flow, pH, Total Recoverable Lead and Total Chromium in September 1998 and October 1998; for pH, Total Recoverable Lead, and Total Chromium in November 1998; and for pH in December 1998.
15. The Respondent failed to submit twelve (12) months of Discharge Monitoring Reports (DMRs) and Monthly Monitoring Reports (MMRs) to IDEM.
16. The Respondent failed to submit fifteen (15) months of Discharge Monitoring Reports (DMRs) and Monthly Monitoring Reports (MMRs) to IDEM by the 28th day of the month following the month of each completed monitoring period.
17. Pursuant to 327 IAC 5-11-5, any violation of the pretreatment rules may be subject to enforcement action by IDEM including revocation of the users= permit.
18. Pursuant to IC 13-18-11-14, it is unlawful for any person, firm or corporation, both municipal and private, to operate a water or wastewater treatment plant or a water distribution system unless the operator in responsible charge is duly certified to by the commissioner under the provisions of this chapter. Furthermore, it shall be unlawful for any person to perform the duties of an operator in responsible charge of such works as defined herein without being duly certified under the provisions of this chapter.
19. Part II.3. of the Permit states, in substance, the permittee shall have the waste treatment facilities under the direct supervision of an operator certified by IDEM.
20. The Respondent did not employ a certified operator to operate the Respondent’s pretreatment facility. The certified operator listed on the September 3, 1997, August 17, 1998 and June 17, 1999 NPDES Facility Inspection Reports does not carry a current wastewater certification from IDEM.
21. The Notice of Violation (NOV) issued by IDEM on November 6, 1998 is superceded by the NOV issued on or about July 21, 2000.
22. The Respondent submitted a provisional certification and wastewater certified operator exam application in December 2000. The provisional certification will be in effect until the end of the thirty (30) day grading period following the May 11, 2001 exam.
23. In recognition of the settlement reached, Respondent waives any right to administrative and judicial review of this Agreed Order.
II. ORDER
2. Respondent shall submit to the IDEM for its approval a Compliance Plan (CP) that addresses the deficiencies and violations noted herein. The CP is due within thirty (30) days from the Effective Date of this Order. The CP is subject to approval of the IDEM. If the IDEM deems the plan inadequate, a revised plan shall be submitted within fifteen (15) days of receipt of notice from the IDEM of the inadequacies thereof. If after submission of the revised document(s), the IDEM still finds that the document(s) are inadequate, then the IDEM may require further modification of the CP as necessary to meet the IDEM's requirements. If further modification does not meet the IDEM's approval, the IDEM will suggest appropriate modification to be undertaken by Respondent within a specified timeframe. If such modification is not timely undertaken or an alternative plan timely submitted by the Respondent is not approved by the IDEM, the Respondent will be liable for stipulated penalties. Respondent, upon written notification by the IDEM, shall immediately implement the approved plan, including the dates for completion of the scheduled items. The approved CP shall be incorporated into the Agreed Order and shall be deemed an enforceable part thereof. The CP shall include, but not be limited to:
A. An Operations and Maintenance (O & M) Manual for the existing plant that addresses inspections, scheduled maintenance and operations.
B. A Quality Assurance/Quality Control (QA/QC) Laboratory Manual, that addresses all sampling and analytical procedures to assure compliance with the requirements of the Permit (to include monitoring the effluent parameters as required in the Permit) and the actions taken to assure consistent compliance with Permit effluent limitation requirements.
C. A standard operating procedure or policy to ensure that the monthly reports are submitted to IDEM and the City of Peru Wastewater Treatment Plant in a timely manner as outlined in the Permit.
Upon approval of the CP and subsequent completion of each of the scheduled work items contained in the CP, the Respondent shall submit documentation within fifteen (15) days of the completion of the item to the address in paragraph 6.
3. Upon completion of the CP, the Respondent shall be under a performance period during which the Respondent shall maintain compliance with the Monthly Average effluent limitations of its pretreatment permit. The performance period will end after IDEM serves notice that six (6) consecutive months of compliance with Monthly Average effluent limitations have been achieved. The performance period may not extend beyond twelve (12) months after completion of the CP. Should Respondent fail to demonstrate six (6) consecutive months of compliance with monthly average effluent limitations within twelve (12) months of completion of the CP, then IDEM may, at its discretion, initiate an additional enforcement action.
4. The Respondent shall submit Permit required monthly reports (i.e., Discharge Monitoring Reports) by the 28th day of the month following the month of each completed monitoring period to the following addresses:
State Address Municipal Address
Technical Support Branch Certified Operator
Office of Water Management Peru Wastewater Treatment Plant
IDEM 335 East Canal
100 North Senate Avenue P.O. Box 67
Indianapolis, IN 46206-6015 Peru, Indiana 46970
5. The Respondent shall monitor all effluent parameters as required in Part I.A.1. of the Permit.
6. Once the provisional certification expires in June 2001, and the provisional certified operator passes the exam, documentation of becoming a certified operator must be submitted to the address listed below by July 15, 2001. However, if the provisional certified operator does not pass the wastewater certified operator's exam, the Respondent shall hire a certified operator with the proper license classification to operate the Respondent’s facility. Verification of said hiring and proof of proper license must be submitted to the following address by July 31, 2001:
Linda L. McClure
Indiana Department of Environmental Management
Office of Enforcement
100 North Senate Avenue
P.O. Box 6015
Indianapolis, IN 46206-6015
7. This penalty reflects a significant reduction based upon evidence submitted by the Respondent who adequately demonstrated an inability to pay the original penalty amount assessed based on IDEM's civil penalty policy. Respondent is assessed a civil penalty of Six Thousand Nine Hundred and Seventy-Five Dollars ($6,975). The civil penalty shall be paid in the following manner: Five Hundred and Eighty-Three Dollars ($583) is due and payable to the Environmental Special Fund within thirty (30) days of the Effective Date of this Agreed Order. The remaining amount of Six Thousand Three Hundred and Ninety-Two Dollars ($6,392) is to be paid in eleven (11) monthly installments of Five Hundred and Eighty-One Dollars ($581) due and payable to the Environmental Special Fund on or before the following dates:
May 30, 2001 June 30, 2001 July 30, 2001
August 30, 2001 September 30, 2001 October 30, 2001
November 30, 2001 December 30, 2001 January 30, 2002
February 30, 2002 March 30, 2002
8. Civil are payable by check to the Environmental Management Special Fund. Checks shall include the Cause Number of this action and shall be mailed to:
Cashier
Indiana Department of Environmental Management
100 N. Senate Avenue
P. O. Box 7060
Indianapolis, IN 46207-7060
9. In the event that the civil penalty required by paragraph 7 is not paid in timely installments, as specified in this Agreed Order, 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.
10. This Agreed Order shall apply to and be binding upon the Respondent, its officers, directors, principals, agents, successors, subsidiaries, and assigns. The Respondent=s signatories to this Agreed Order certify that they are fully authorized to execute this document and legally bind the parties they represent. No change in ownership, corporate, or partnership status of the Respondent shall in any way alter its status or responsibilities under this Agreed Order.
11. In the event that any terms of the 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 the Agreed Order did not contain the invalid terms.
12. The Respondent shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights to the Development 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 shall remain in effect until Respondent has complied with the requirements of paragraphs 2 through 7 of this Agreed Order and Complainant issues a Resolution of Cause letter.
TECHNICAL RECOMMENDATION: RESPONDENT:
Department of Environmental Management
By: _________________________ By: _________________________
Mark W. Stanifer, Section Chief
Office of Enforcement Printed: ________________________
Title: ________________________
Date: _______________ Date: _______________
COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT
:Department of Environmental Management
By: _________________________ By: ________________________
Sierra L. Cutts, Attorney
Office of Legal Counsel
Department of Environmental Management
Date: _______________ Date: _______________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS ___________ DAY OF ______________________, 2001.
FOR THE COMMISSIONER:
April 12, 2001
___________________________
Felicia A. Robinson
Assistant Commissioner of Enforcement