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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-2118
                            )    
JASON TROXEL, D/B/A                )
MILL ROAD ESTATES M.H.P.,            )
                            )
        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.

2.    Respondent is Jason Troxel, d/b/a Mill Road Estates M.H.P. (hereinafter referred to as "Respondent"), which operates the wastewater treatment plant (WWTP) at the Mill Road Estates M.H.P., located in Fort Wayne, Allen County, Indiana.

3.    The Indiana Department of Environmental Management ("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 to:

            Mr. Jason Troxel
            Mill Road Estates M.H.P.
            4695 East 200 North
            Craigville, IN 46731

5.    327 IAC 2-4-1 states that every person, firm or corporation that operates a municipal, industrial, commercial or agricultural waste treatment plant control facility or discharges wastewaters to the waters of the state of Indiana shall submit to the Commissioner monthly reports of operation (MRO), which shall include flow measurements and wastewater characteristics.

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.    A permittee shall comply with all terms and conditions of its NPDES permit; any permittee non-compliance 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 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.    327 IAC 5-2-13 states, in substance, that in order to assure compliance with permit terms and conditions, all permittees shall monitor as required in the permit the volume of wastewater flow at monitoring points specified in the permit, including the final effluent flow from each point source.

8.    327 IAC 5-2-15 states, in substance, that permittees shall report to the Commissioner, using Discharge Monitoring Reports (DMR), the results of any monitoring specified by the permit.

9.    Part I.B.3. of NPDES Permit No. IN 0109835 states, 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. These reports shall include, but not necessarily be limited to, the Discharge Monitoring Report (DMRs) and the Monthly Report of Operation (MROs).

10.    A record review indicates that the DMRs and MROs were submitted late for the following months:

    1994    January, February, March, April, May, June, August, September, October, November, December

    1995    February, March, April, May, June, July, August, October, November, December

    1996    August, September, October

11.    A record review indicates that the DMRs and MROs are missing for September 1995 and November 1996. On January 15, 1997 the IDEM issued a Warning of Noncompliance letter which notified the Respondent that these reports had not been received by IDEM and requested the Respondent to submit the missing reports within fifteen (15) days of receipt of the Warning of Noncompliance letter. As of June 20, 1997, no response to the Warning of Noncompliance letter had been received by the IDEM. Failure to submit DMRs and MROs is in violation of 327 IAC 5-2-8, 327 IAC 2-4-1, 327 IAC 5-2-15, and Part I.B.3 of NPDES Permit No. IN 0109835. In a September 12, 1997 Settlement Conference, Respondent stated that the September 1995 and November 1996 DMRs and MROs had been submitted. Review of IDEM's files verifies this information.

12.    IC 13-30-2-1 requires, 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.

13.    Part I.A.1. of the Permit specifies the permit final effluent limitations for Mill Road Estates.

14.    A record review for December, 1994 through February, 1997 indicates that Mill Road Estates exceeded permit final effluent limitations in violation of 327 IAC 5-2-8, IC 13-30- 2-1 and the Permit for:

    a.)    Carbonaceous Biochemical Oxygen Demand (CBOD5) for the months of :
    
            1994     December
            1996    March, June
            
    b.)    Total Suspended Solids (TSS) for the months of:    
    
            1994    December
            1995    March
            1996    February, March, June, July, September

15.    327 IAC 6-2-6(a) regulating land application permits, states that characteristics of sludges, waste products, and wastewaters shall be monitored and reported to the commissioner as required in a permit application form or a permit. The results of analysis of such characteristics shall be reported both on a wet weight and dry weight basis.

16.    327 IAC 6-2-6(b) states, in relevant part, that information regarding application rates and site conditions shall be recorded daily by the permittee and reported annually by January 31, for the preceding calendar year to the commissioner on forms provided by the commissioner or as otherwise specified by the permit.

17.    327 IAC 6-2-6(c) states the permittee shall record the monitoring results and information required by subsections (a) and (b). Such records shall be maintained by the permittee for a minimum of three (3) years or a longer time if requested by the commissioner.

18.    Part IV.4.a. of Land Application Permit No. IN LA 000515, states in substance, that an annual report shall be submitted by the permittee by January 31 for the preceding year to the IDEM.

19.    On May 12, 1995, the IDEM Office of Water Management (OWM) issued a letter to Respondent which informed the Respondent that the Land Application Annual Report for 1994 had not been received by the IDEM. The OWM did not receive a response to the May 12, 1995 letter. On February 16, 1996, the IDEM OWM sent a Warning of Noncompliance letter to the Respondent which informed the Respondent that the Land Application Annual Report for 1995 had not been received by the IDEM. The OWM did not receive a response to the February 16, 1996 Warning of Noncompliance letter. Failure to submit the 1994 and 1995 Land Application Annual Reports is a violation of 327 IAC 6-2-6 and Part IV.4.a. of Land Application Permit IN LA 000515.

20.     On September 12, 1997, a Settlement Conference was held between the Respondent and his counsel and designated representatives of IDEM. The Respondent contends that the 1994 and some of the 1995 DMRs and MROs had been sent to an address that was not current at the time. IDEM's change of address took place in the fall of 1993. Respondent also contends that the DMRs and MROs for September 1995 and November 1996 had

been submitted. Review of IDEM's files verifies this information. Respondent further contends that a facsimile letter response to the January 15, 1997 Warning of Noncompliance, was sent on January 24, 1997, however IDEM has no record of receipt of that response.

    Respondent contends that he responded by letter dated July 12, 1995 to IDEM's letter of May 12, 1995 and stated that no sludge had been applied for the period from July 21, 1994, the date of the permit issuance to July 12, 1995. IDEM maintains that this letter was never received. The Respondent did not receive further communication from the IDEM regarding the 1994 land application report until July 27, 1997 when the IDEM issued the Notice of Violation related to this Agreed Order. The February 16, 1996 IDEM letter was a specific request for the 1995 annual report. On March 11, 1997, the IDEM informed the Respondent that it had not received an annual report for 1995 and 1996. On March 13, 1997 the Respondent replied in writing and stated "There has been no activity from our plant. We have not land applied in 1995 or 1996."

21.    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 the Complainant or his delegate, and has been received by the Respondent. This Agreed Order shall have no force or effect until the Effective Date.

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 plan is deemed inadequate by the IDEM, 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 time frame. If such modification is not timely undertaken or an alternative plan is not timely submitted by the Respondent, the Respondent will be liable for stipulated penalties. Respondent, upon written notification by the IDEM, shall immediately implement the approved CP. The approved CP shall be incorporated into the Agreed Order and shall be deemed an enforceable part thereof. The CP shall include:
    
        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, analytical, and reporting procedures to assure compliance with the requirements of the NPDES and the Land Application permit.

3.    All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:

                Christina Sorensen
                Water Enforcement Section
                Office of Enforcement
                Indiana Department of Environmental Management
                Room 1315, IGCN
                P. O. Box 6015
                Indianapolis, IN 46206-6015

4.    Respondent is assessed a civil penalty of Six Thousand Seven Hundred Twenty Dollars ($6,720). Said penalty amount shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the Effective Date of this Agreed Order.

5.    In the event the following terms and conditions are violated, the Complainant may assess and the Respondent shall pay a stipulated penalty in the following amounts:

                 VIOLATION                PENALTY

    Paragraph 2    Failure to submit compliance plan or
            revised compliance plan            $1,000 per week late

            Failure to implement approved
            compliance plan                $1,000 per documented event
                        
6.    Stipulated penalties shall be due and payable within thirty (30) days after Respondent receives written notice that the Complainant has determined a stipulated penalty is due. Assessment and payment of stipulated penalties shall not preclude the Complainant from seeking any additional relief against the Respondent for violation of the Agreed Order. In lieu of any of the stipulated penalties given above, the 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.


7.    Civil and stipulated 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
                Indiana Department of Environmental Management
                100 N. Senate Avenue
                P. O. Box 7060
                Indianapolis, IN 46206-7060

8.    In the event that the civil penalty required by paragraph 4 is not paid within thirty (30) days of the Effective Date of 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.

9.    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.

10.    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.

11.    The 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.

12.    This Agreed Order shall remain in effect until Respondent has complied with all terms and conditions of this Agreed Order.

TECHNICAL RECOMMENDATION:        RESPONDENT:
Department of Environmental Management

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: ________________________
Office of Legal Counsel                
Department of Environmental Management

Date: _______________                Date: _______________

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _____ DAY OF ____________________, 1997.

                            For the Commissioner:

                            Signed December 9, 1997
                            David J. Hensel
                            Director
                            Office of Enforcement

Converted by Andrew Scriven