STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT OF
) SS: ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION )
COMMISSIONER OF THE DEPARTMENT )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
)CAUSE NO. 1999-4747-W or B-2455
v. )
)
MARSH VILLAGE PANTRIES, INC., )
)
Respondent. )
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. Pursuant to IC 13-30-3-3(c), entry into this Agreed Order by
Respondent shall not constitute, represent, or be interpreted as an admission of any of the alleged
violations contained herein or of the accuracy of any of the Finding of Facts herein upon which
any of such alleged violations are predicated.
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. The Respondent, Marsh Village Pantries, Inc. (the "Respondent"), owns and operates a
wastewater treatment plant (WWTP) located at 9610 North Wheeling Pike, Muncie,
Indiana. The WWTP is a class I facility which was authorized to discharge treated
wastewater from Outfall 001 to waters of the State named Killbuck Creek, through
January 31, 1998, under National Pollutant Discharge Elimination System (NPDES)
Permit Number IN 0057126 (the "Permit"). The Permit authorizes such discharge in
accordance with stated effluent limitations, monitoring requirements and other
conditions.
3. IDEM has jurisdiction over the parties and subject matter of this action.
4. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation via Certified Mail on June
23, 1999, to:
Mr. Alan Marsh, President and to: Mr. Lawrence P. Butt, Resident Agent
Marsh Village Pantries, Inc. Marsh Village Pantries, Inc.
9800 Crosspoint Boulevard 9800 Crosspoint Boulevard
Indianapolis, IN 46256 Indianapolis, IN 46256
5. IC 13-30-2-1 states, in substance, that a person may not 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 of emission
requirements adopted by the appropriate board pursuant to this article.
6. 327 IAC 5-2-8 states, in substance, that the following conditions apply to all NPDES
permits and shall be incorporated into the permits either expressly or by reference:
a. The permittee must comply with all terms and conditions of the NPDES permit.
Any permit noncompliance constitutes a violation of the Clean Water Act (CWA)
and the Environmental Management Act (EMA) and is grounds for enforcement
action;
b. The permittee shall take all reasonable steps to minimize or correct any adverse
impact on the environment resulting from noncompliance with the permit;
c. The permittee shall at all times maintain in good working order and efficiently
operate all facilities and systems (and related appurtenances) for 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;
d. The permittee shall comply with monitoring, recording, and reporting
requirements established in accordance with 327 IAC 5-2-13, 327 IAC 5-2-14,
and 327 IAC 5-2-15.
7. Part II.A.1. of the Permit states, in part, "All discharges authorized herein shall be
consistent with the terms and conditions of this permit. The discharge of any pollutant
more frequently than, or at a level in excess of, that identified and authorized by this
permit shall constitute a violation of the terms and conditions of this permit. Such a
violation may result in the imposition of civil and/or criminal penalties as provided for in
Chapter 13 of the Environmental Management Act."
8. 327 IAC 5-3-2(a)(2) states, in substance, that persons currently discharging pollutants
under an existing NPDES permit shall submit a new application at least one hundred
eighty (180) days prior to the expiration date of the existing permit, unless a later date is
allowed by the Commissioner.
9. The Permit states that in order to receive authorization to discharge beyond the date of
expiration, the permittee shall submit such information and forms as are required by the
Indiana Department of Environmental Management no later than 180 days prior to the
date of expiration.
10. The Permit became effective on April 1, 1993 and had an expiration date of January 31,
1998. The Respondent failed to submit an application for renewal of the permit within
the required 180 days prior to the Permit expiration date. Therefore, the Respondent has
been operating its treatment facility without a valid NPDES permit since February 1,
1998. Accordingly, for the period extending from February 1, 1998 to the present, the
Respondent has been in violation of one, but not both, of the following set of standards:
IC 13-30-2-1 and 327 IAC 5-2-2 which state, in substance, that any discharge of
pollutants into the waters of the state as a point source discharge, except for
exclusions made in 327 IAC 5-2-4, is prohibited unless in conformity with a valid
NPDES permit obtained prior to discharge.
327 IAC 2-1-6(a)(1) which states, in substance, that all 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:
1) that will settle to form putrescent or otherwise objectionable deposits;
2) that are in amounts sufficient to be unsightly or deleterious;
3) that produce color, odor or other conditions in such degree as to create a
nuisance;
4) which are in amounts sufficient to be acutely toxic to, or to otherwise
severely injure or kill aquatic life, other animals, plants, or humans;
5) which are in concentrations or combinations that will cause or contribute
to the growth of aquatic plants or algae to such degrees as to create a
nuisance, be unsightly, or otherwise impair the designated uses.
OR
327 IAC 5-2-8 and the Permit, as noted above. This violation is based on a
records review for February 1, 1998 through April 31, 1999, which indicated that
the Respondent was in violation of the Permit final limitations for:
1) Total Suspended Solids (TSS) for the month of October 1998;
2) Escherichia coli bacteria (E. coli) for the months of May, June, August,
and October 1998.
The record review for February 1, 1998 through April 31, 1999, indicated that the
Respondent was in violation of NPDES permit monitoring requirements for:
1) Failure to monitor and report E. coli sample results for April, July, and
September 1998, and April 1999; and
2) Failure to monitor and report Ultraviolet Light Intensity for April, May,
July, August, September, and October 1998.
11. 327 IAC 2-4-4 and Part I.B.3 of the Permit provide, in substance, that the permittee shall
submit monitoring reports to the Indiana Department of Environmental Management
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. A record review indicates that, for the period of February 1998 through April 1999, the
monitoring reports for the months of April, May, July, August, September, October,
November, and December of 1998, and March of 1999, were submitted late in violation
of 327 IAC 2-4-4 and Part I.B.3. of the Permit.
13. 327 IAC 5-2-8(9) states, in part, that the permittee shall comply with monitoring,
recording, and reporting requirements established an accordance with sections 13 and 15
of this rule. 327 IAC 2-4-3 states, in part, that sampling, measurements of flow and
characteristics of the effluent shall be performed at a frequency prescribed by the
commissioner. 327 IAC 5-2-13 contains the basic NPDES permit monitoring
requirements. Part I.B.2. of the Permit states that the influent and wastewater from unit
treatment processes, as well as the final effluent shall be sampled and analyzed for the
pollutants and operational parameters specified by the applicable Monthly Report of
Operation Form, as appropriate, in accordance with 327 IAC 5-2-13.
14. 327 IAC 5-2-14(a), and Part I.B.6 of the Permit specify the sample information that the
permittee is required to record. 327 IAC 5-2-14(b) and Part I.B.8. of the Permit require,
in part, that all records and information resulting from the monitoring activities required
by the Permit shall be retained for a minimum of three years and in cases where the
original records are kept at another location, a copy of all such records shall be kept at the
permitted facility.
15. On February 20, 1997, and January 28, 1999, IDEM inspected the Respondent's WWTP and noted on both inspection reports that no influent sewage sampling or testing was being performed. The inspection reports also both indicated that the composite samples for BOD and TSS required by the Permit were not being performed in the manner required by the Permit. The January 28, 1999, inspection report indicated that, except for
the March 1998 monthly report, no process control testing was indicated on the monthly
reports of operation (MROs).
16. The Respondent's failure to perform influent sampling and process control testing as
required and its failure to perform composite sampling as prescribed in the Permit are
violations of 327 IAC 5-2-8(9), 327 IAC 2-4-3, 327 IAC 5-2-13, and Part I.B.2. of the
Permit.
17. During the February 20, 1997 inspection, it was noted that the February 1997 monthly
report of operation was not on site. During the January 28, 1999 inspection, it was noted
that no records were kept on site for August 1998. The January 28, 1999, inspection
report noted that the sample log on site did not indicate the exact place of sample
collection, nor did it indicate the method of pH analysis.
18. The Respondent's failure to specify the required sample information and failure to retain
all records and information resulting from the monitoring activities required by the Permit
for a minimum of three years at the permitted facility are violations of 327 IAC 5-2-14(a),
and Part I.B.6 of the Permit and 327 IAC 5-2-14(b) and Part I.B.8 of the Permit.
19. On November 30, 1999, IDEM staff conducted an inspection of the Respondent's WWTP
and observed and noted on the inspection report that there were no current records of any
kind at the plant site and sludge solids were flowing from the aeration units to the
disinfection tank and into the effluent pump station. A record review indicated that the
Respondent has not submitted monthly reports for May, August, September, October, and
November of 1999.
20. On December 16, 1999, the Respondent submitted a letter to IDEM that stated, among
other things, that it shall terminate the operation of its WWTP and NPDES Permit No. IN
0057126 effective as of December 16, 1999, and that they were planning on pumping and
hauling the effluent in lieu of continuing to operate the WWTP. The letter stated that on
that date, December 16, 1999, an engineering company was physically separating the
holding tanks from the WWTP and permanently plugging the discharge pipe at Killbuck
Creek.
21. The Respondent's failure to take samples and measurements to meet the effluent
limitations and monitoring requirements of the Permit are in violation of Part I.A.1. of the
Permit. The Respondent's failure to submit monitoring reports for May, August,
September, October, and November of 1999, are in violation of Part I.B.3 of the Permit.
The Respondent's failure to have the WWTP under the direct supervision of an operator
certified by the Commissioner is a violation of Part II.A.3. of the Permit.
22. In recognition of the settlement reached, the Respondent waives any right to
administrative and judicial review of this Agreed Order.
2. If not yet having done so, within ten (10) days of the Effective Date, the Respondent shall
discontinue the operation of the WWTP, cease all discharge from the WWTP,
permanently close the discharge pipe, submit a request to IDEM's Permit Section to void
the Permit, and submit written notification to IDEM that these actions have been
completed.
3. Until the Respondent connects into a planned regional sanitary sewer collection system,
the Respondent shall pump and haul all wastewater from the facility for proper disposal
and shall not discharge any wastewater from the facility into the environment. The
Respondent shall assure that regulations, including Delaware County regulations, are
complied with in regard to its wastewater pumping and hauling activities.
4. The Delaware County RWD is planning to construct a sanitary sewer collection system
that will connect to the Muncie Sanitary District collection system and WWTP. On
September 17, 1999, IDEM issued a Construction Permit (No. L-0062 R) to the Delaware
County RWD for the new sewer collection system. The Construction Permit includes
plans and specifications that will allow the Respondent to connect a lateral to the
Delaware County RWD collection system Within sixty (60) days after the Delaware
County RWD sanitary sewer is operational and contiguous to its property, the Respondent
will connect Respondent's sanitary system to the Delaware County RSD sanitary sewer,
subject to one or more events of force majeure.
5. This Agreed Order, and compliance with its terms, shall resolve all issues which have
been raised in the Notice of Violation issued by Complainant to the Respondent as Cause
No. B-2455, and issues raised in paragraphs 19, 20, and 21 of the "Findings of Fact"
section of this Agreed Order.
6. By entering into this Agreed Order, the Respondent agrees not to claim relief or seek any
remedies which may be otherwise available or specifically granted it under IC 13-15-4
upon its filing of a complete NPDES permit application with IDEM's Office of Water
Management.
7. All submittals required by this Agreed Order, unless the Respondent is notified otherwise
in writing, shall be sent to:
Terry Ressler
Water Enforcement Section
Office of Enforcement, IGCN Room 1315
Indiana Department of Environmental Management
P.O. Box 6015
Indianapolis, Indiana 46206-6015
8. The Respondent is assessed a Civil Penalty of Seven Thousand, One Hundred Thirty Two
Dollars ($7,132). Said penalty amount shall be due and payable to the Environmental
Management Special Fund within thirty (30) days of the Effective Date of this Order.
9. Civil penalties 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, IDEM
100 N. Senate Avenue
P.O. Box 7060
Indianapolis, Indiana 46206-7060.
10. In the event that the civil penalty required by paragraph 8 is not paid within thirty (30)
days of the Effective Date of this Agreed Order the 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.
11. This Agreed Order shall apply to and be binding upon the Respondent, its officers,
directors, principals, agents, successors, subsidiaries, and assigns. The 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.
12. This Agreed Order is not and shall not be interpreted to be a Permit, or a modification of
an existing Permit, nor shall it in any way relieve the Respondent of its obligation to
comply with any applicable federal or state law or rule.
13. The Complainant does not, by its approval of this Agreed Order, warrant or aver in any
manner that the Respondent's compliance with any aspect of this Agreed Order will result
in compliance with the provisions of the Clean Water Act or state law.
14. The Respondent shall provide a copy of this Agreed Order, if in force, to any subsequent
owners or successors before ownership rights are transferred. The Respondent shall by
contract require that all contractors, firms, and other persons acting for it comply with the
terms of this Agreed Order.
15. This Agreed Order shall remain in effect until Respondent has connected its sanitary
sewer into the lateral to the Delaware County RWD collection system or until all of the
following events have been completed:
a. The Respondent has completed all of the requirements of paragraphs 2, 3, and 4
above.
b. IDEM issues a resolution of cause or "close out" letter to the Respondent in this
cause.
By: _________________________ By: _________________________
Mark Stanifer, Section Chief
Office of Enforcement Printed: ________________________
Title: ________________________
Date: _______________ Date: _______________
COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:
Department of Environmental Management
By: _________________________ By: ________________________
Nancy A. Holloran
Office of Legal Counsel
Department of Environmental Management
Date: _______________ Date: _______________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS ________________ DAY OF _________________________, 2000.
For the Commissioner:
__Signed 3/6/00___
Felicia A. Robinson
Assistant Commissioner of Enforcement
Converted by Andrew Scriven