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STATE OF INDIANA    )        BEFORE THE INDIANA DEPARTMENT OF
                )    SS:    ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION    )

COMMISSIONER OF THE DEPARTMENT    )
OF ENVIRONMENTAL MANAGEMENT,    )
                            )
            Complainant,            )
                            )    CAUSE NO. B-2129
                v.            )
                            )
CEDAR CREEK MOBILE HOME PARK,        )
                            )
            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 ("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, Cedar Creek Mobile Home Park (the "Respondent") owns and operates a wastewater treatment plant (WWTP) located near Bunker Hill, Indiana, on U.S. 31 in Miami County. The WWTP is a semi-public facility which was authorized to discharge 13,050 gallons per day of treated wastewater to waters of the State named Pipe Creek, through June 30, 1995 under National Pollutant Discharge Elimination System (NPDES) Permit Number IN 000043893 (the "Permit"). The Permit authorized such discharge in accordance with stated effluent limitations, monitoring requirements and other conditions. Although the Permit has expired, the Respondent continues the above-described discharge.

3.    All Permit application forms and instructions have previously been provided to the Respondent.


4.    The Respondent submitted an application for renewal of the Permit in April 1997.

5.    IDEM has jurisdiction over the parties and subject matter of this action.

6.    Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation via Certified Mail to:
         Mr. Kenny Wood, Owner
        Cedar Creek Mobile Home Park
        P.O. Box 363
        Lowell, IN 46356
    
7.    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.

8.    327 IAC 5-2-8(1) states, in substance, that the following condition applies to all NPDES permits and shall be incorporated into the permits either expressly or by reference:

    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.

9.    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."

10.     A record review for May 1995 through June 1995 indicated that Cedar Creek Mobile Home Park was in violation of NPDES permit final effluent limitations for:

    a.    Total Suspended Solids (TSS) for both months, May 1995 and June 1995; and

    b.    Biochemical Oxygen Demand, five day (BOD5) for the month of May 1995.

11.    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.

12.    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.

13.    The Permit IN 0043893 became effective on September 1, 1990 and had an expiration date of June 30, 1995. 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 June 30, 1995. Accordingly, for the period extending from June 30, 1995 to the present, the Respondent has been in violation of one, but not both, of the following sets 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:

    a.    that will settle to form putrescent or otherwise objectionable deposits;

    b.    that are in amounts sufficient to be unsightly or deleterious;
    
    c.    that produce color, odor or other conditions in such degree as to create a nuisance;
    
    d.    which are in amounts sufficient to be acutely toxic to, or to otherwise severely injure or kill aquatic life, other animals, plants, or humans;

    e.    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(1) and the Permit, as noted above. These violations are based on a record review for June 1995 through May 1997, which indicated that Cedar Creek Mobile Home Park was in violation of the Permit final limitations for:

        a.    Total Suspended Solids (TSS) for fifteen (15) months from July 1995 to May 1997;

        b.    Biochemical Oxygen Demand, five day (BOD5) for fifteen (15) months from July 1995 to May 1997; and
        
        c.    Total Residual Chlorine (TRC) for three (3) months from April 1996 to August 1996.

14.    In recognition of the settlement reached, the 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.    Within ninety (90) days of the Effective Date of this Agreed Order, the Respondent shall submit to IDEM for its approval a Compliance Plan (CP ) which addresses the deficiencies and violations noted herein. This plan shall include but not be limited to:

    a.    Operation and Maintenance (O&M) Manual for use in training operational personnel and providing a Standard Operating Procedure (SOP) for effective O&M of all of the treatment processes and equipment. The O&M Manual will include design and use of log-sheet forms to document actual monitoring, process control, and maintenance at the facility on a daily basis. The O&M Manual shall also include requirements for ready availability of all needed information for on-site inspection.

    b.     Compliance with effluent limitations, and terms and conditions of the Respondent's NPDES permit issued September 1, 1990. The Respondent shall develop and submit a plan for improving the performance of the treatment plant so that the treated effluent complies with the effluent limitations contained in its expired NPDES permit, and other terms and conditions of the Permit are met. The plan

shall assure that continuous compliance with those limitations, and permit terms and conditions are achieved within six (6) months from the Effective Date. If a new NPDES permit is issued, and becomes effective any time during this period, the Respondent will then be bound by the limitations contained in that permit.

3.    The CP is subject to the approval of IDEM. If the plan is deemed inadequate by IDEM, a revised CP shall be submitted within fifteen (15) days of receipt of notice from IDEM of the inadequacies thereof. If after the submission of the revised document(s) IDEM still finds the document(s) are inadequate, then IDEM may require further modification of the CP as necessary to meet IDEM's requirements. If further modification does not meet IDEM's approval, IDEM will suggest appropriate modification to be undertaken by the Respondent within specified time frames. If such modification is not timely undertaken or an alternative plan timely submitted by the Respondent is not approved by IDEM, the Respondent will be liable for stipulated penalties. The Respondent, upon written notification by IDEM, shall immediately implement the approved plan, including the dates for completion of the schedule. The approved plan shall be incorporated into the Agreed Order and shall be deemed an enforceable part thereof.

4.    Subsequent to the six month period under the CP requirements of paragraph 2(b) above, the Respondent shall be liable for stipulated penalties for failure to comply with the effluent limitations, terms and conditions contained in its expired NPDES permit. Such liability continues until the Effective date of the new permit. The expired NPDES permit is included with this Agreed Order as Attachment A.

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-2129.
    
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 :

        Martha E. Clark
        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 Two Thousand, Three Hundred Sixty-Four Dollars ($2,364). Within thirty (30) days of the Effective Date of this Order, Respondent shall pay an initial installment penalty payment of One Hundred Ninety Seven Dollars ($197). Two months after the effective date of this Order, and every month thereafter, the Respondent shall pay an installment penalty payment of One Hundred Ninety Seven Dollars ($197 ) for a total of twelve (12) installments, including the initial installment, until the balance of the Two Thousand, Three Hundred Sixty-Four Dollars ($2,364) Civil Penalty is paid. Said installment penalty payments shall be due and payable to the Environmental Management Special Fund and mailed to the address listed in Paragraph 11.

9.    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            $200 per week CP is submitted late
        
        Paragraph 3            $200 per week any subsequent submittal (if necessary) is late, or milestone date is late in being completed

        Paragraph 4            $1000 per violation of any permit limitation, term                         or condition

10.    Stipulated penalties shall be due and payable within thirty (30) days after the 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 assessment of any stipulated penalty given above, the Complainant may seek any other remedies or sanctions available by virtue of the Respondent's violation of this Agreed Order, or Indiana law, including but not limited to civil penalties pursuant to IC 13-30-4-1.

11.    Civil and stipulated penalties are payable by check to the Environmental Management Special Fund. Checks shall include the Cause Number of this action and be mailed to:
             Cashier, IDEM
             100 N. Senate Avenue
            P.O. Box 7060
            Indianapolis, Indiana 46206-7060.

12.    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.

13.    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.

14.    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.

15.    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.

16.    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 the Agreed Order did not contain the invalid terms.

17.    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.

18.    This Agreed Order shall remain in effect until all of the following events have been completed:

    a.    The Respondent has completed all of the requirements of paragraphs 2, 3, 4, and 8 above.

    b.    A new NPDES permit has been issued by IDEM, and that permit becomes effective.

    c.    IDEM issues a resolution of cause or "close out" letter to the Respondent in this cause.

TECHNICAL RECOMMENDATION:        RESPONDENT:
Department of Environmental Management

By:      signed 8/4/97                    By:      signed 1/30/98
    Mark Stanifer, Section Chief
    Office of Enforcement            Printed: Kenny Wood
                            Title:    Owner

Date: _______________                Date:     _______________

COUNSEL FOR COMPLAINANT:        COUNSEL FOR RESPONDENT:
Department of Environmental Management

By: signed 9/22/97                    By: ________________________
Ann S. Long
Office of Legal Counsel                
Department of Environmental Management

Date: _______________                Date: _______________

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS ________________ DAY OF _________________________.

                            For the Commissioner:

                             Signed 2/3/98
                            David J. Hensel
                            Director
                            Office of Enforcement
                            

Converted by Andrew Scriven