STATE OF INDIANA |
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BEFORE THE INDIANA DEPARTMENT OF |
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ENVIRONMENTAL MANAGEMENT |
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COUNTY OF MARION |
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COMMISSIONER OF THE DEPARTMENT |
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OF ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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v. |
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Case No. 2018-25516-W |
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Manasek
Acquisitions Company, LLC, |
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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.
Manasek
Acquisition Company, LLC (Respondent), owns/operates the Warner Bodies
manufacturing facility, located at 11700 North State Road 37, in Elwood,
Madison County, Indiana (the Site).
3.
Respondent
is authorized by its Industrial Waste Pretreatment Permit No. INP000662 (the
Permit), to discharge wastewater, in accordance with the terms and conditions
of the IWP Permit, from its facility’s Outfall 001 into the Publicly Owned
Treatment Works (POTW) of the City of Elwood.
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:
Richard Manasek, President |
Manasek Acquisition Company, LLC |
11700 North State Road 37 |
Elwood, IN 46036 |
Robert J. Hicks, Registered Agent |
Manasek Acquisition Company LLC |
One American Square, Suite 2000 |
Indianapolis, IN
46282 |
6.
Pursuant
to 40 Code of Federal Regulations (CFR) 433.15, the wastewater from Permittee’s
operation are subject to the Pretreatment Standards for New Sources for the
Metal Finishing Point Source Category.
The standards are concentration-based (mg/l) and are based on the Best
Available Technology (BAT).
7.
Pursuant
to 327 Indiana Administrative Code (IAC) 5-2-8(1), Permittee shall comply with
all terms and condition 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.
During
an investigation conducted by a representative of IDEM, violations were found,
as described below.
9.
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 Monitoring Reports (MMRs) submitted by
Respondent for the period November 2016 to June 2018 revealed effluent
limitation violations and monitoring requirement violations contained in the
Permit as follows:
a.
The
daily maximum and monthly average for zinc was exceeded during November and
December 2016, February through December 2017, and January through June 2018,
in violation of Part I.A.1 of the Permit.
b.
The
maximum weekly average and monthly average concentration for total toxic
organics (TTOs) was exceeded during December 2016 and December 2017, in
violation of Part I.A.1 of the Permit.
10.
On
October 4, 2017, and March 29, 2018, IDEM sent Noncompliance Letters to
Respondent outlining the violations at the Site. The letters required a
response detailing actions taken to correct the violations. To date, IDEM has
not received a response to the above noted violations and noncompliance
letters, and the violations continue at the Site.
11.
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 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 Paragraph 8 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
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,
including the actions Respondent will take to:
A.
Achieve
and maintain compliance with discharge limitations contained in the Permit,
specifically for zinc and total toxic organics (TTOs).
The
CP shall include an implementation and completion schedule, including specific
milestone dates.
4.
Respondent shall, after completion of the work
required pursuant to the approved CP from Paragraph 3 above, demonstrate 12
consecutive months of compliance (Compliance Demonstration) with the terms and
conditions of the Permit.
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.
5.
The plans required by Paragraphs 3 and 4 above
are subject to IDEM approval. In the event IDEM determines that any 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.
6.
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 4 above, will re-start. Failure to
achieve compliance at the conclusion of work under an Additional Action Plan
may subject Respondent to additional enforcement action.
7.
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 March
31st, June 30th, September 30th, and December
31st until completion of the CP or Additional Action Plan.
8.
All
submittals required by this Agreed Order, unless Respondent is notified
otherwise in writing by IDEM, shall be sent to:
Patrick
Colcord, Enforcement Case Manager |
Office
of Water Quality – IGCN 1255 |
Indiana
Department of Environmental Management |
100
North Senate Avenue |
Indianapolis,
IN 46204-2251 |
9.
Respondent
is assessed and agrees to pay a civil penalty of Three Thousand Eight Hundred
Twenty Five Dollars ($3,825). 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.”
10.
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 |
3, 5 |
Failure
to submit or modify the CP within the required time period. |
$400
per week late, or part thereof. |
4 |
For
violations of terms and conditions of the Permit during the Compliance
Demonstration. |
$250
per violation |
4, 5 |
Failure
to submit or modify the Additional Action Plan, if required, within the given
time period. |
$250
per week late, or part thereof. |
6 |
Failure
to implement and/or meet any milestone date set forth in the approved CP or
Additional Action Plan. |
$500
per week late, or part thereof. |
7 |
Failure to submit to IDEM a written
report of progress or completion for each milestone date included in the CP
or Additional Action Plan within 10 days of completion of the requirements of
each milestone. |
$300
per violation |
11.
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.
12.
Civil
and stipulated penalties are payable by check to the “Environmental Management
Special Fund.” Checks shall include the Case Number 2018-25516-W of this action
and shall be mailed to:
Office
of Legal Counsel |
Indiana
Department of Environmental Management |
IGCN,
Rm N1307 |
100
North Senate Avenue |
Indianapolis,
IN 46204 |
13.
This
Agreed Order shall apply to and be binding upon Respondent and 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.
14.
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.
15.
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.
16.
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.
17.
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 permit or any applicable Federal or State law or
regulation.
18.
Complainant
does not, by its 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.
19.
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 NOV.
20.
Nothing
in this Agreed Order shall prevent IDEM [or anyone acting on its behalf] from
communicating with the United States Environmental Protection Agency (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
EPA or any other agency or entity.
21.
This
Agreed Order shall remain in effect until Respondent has complied with all
terms and conditions of this Agreed Order and IDEM issues a Resolution of Case
(close out) letter to Respondent.
TECHNICAL
RECOMMENDATION: |
RESPONDENT: |
Department
of Environmental Management |
Manasek Acquisitions Company, LLC |
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By:__________________________ |
By:________________________ |
Samantha K.
Groce, 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 February 15,
2019 |
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Martha
Clark Mettler |
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Assistant
Commissioner |
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Office
of Water Quality |