STATE OF INDIANA		)	SS:	BEFORE THE INDIANA DEPARTMENT OF
		)
COUNTY OF MARION		)		ENVIRONMENTAL MANAGEMENT
COMMISSIONER OF THE DEPARTMENT					)
OF ENVIRONMENTAL MANAGEMENT,					)
					)
Complainant,					)
					)
	v.				)	Case No. 2018-25610-S
					)
A1 PORTA POTTY LLC,					)
					)
Respondent.					)

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 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 Indiana Code (“IC”) 13-13-1-1.

2. Respondent is A1 Porta Potty LLC, which owns and operates a portable toilet/septic tank company on property located at 5457 Buck Creek Road in Floyd Knobs, Floyd County, Indiana (the “Site”).

3. On May 21, 2018, the Floyd County Emergency Management Agency reported to IDEM a spill in Yellow Fork Creek. IDEM responded to the spill and determined rinsewater from cleaning a tank of portable toilet deodorizer had been discharged in the Yellow Fork Creek via a storm drain from the Site.

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

5. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation (“NOV”) on January 4, 2019 via Certified Mail to:

RJ Lamb, Registered Agent

A1 Porta Potty LLC

5343 Buck Creek Road

Floyd Knobs, IN 47119

6. During an inspection on May 21, 2018 by a representative of IDEM, the following violations were found:

a. Pursuant to 327 Indiana Administrative Code (“IAC”) 2-1-6(a)(1), all surface 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 that do any of the following:

(A) will settle to form putrescent or otherwise objectionable deposits;

(B) are in amounts sufficient to be unsightly or deleterious;

(C) produce color, visible oil sheen, odor, or other conditions in such degree as to create a nuisance;

(D) are in concentrations or combinations that will cause or contribute to the growth of aquatic plants or algae to such degree as to create a nuisance, be unsightly, or otherwise impair the designated uses; and

(E) are in amounts sufficient to be acutely toxic to, or to otherwise severely injure or kill aquatic life, other animals, plants, or humans.

As noted during the May 21, 2018 inspection, Respondent allowed portable toilet deodorizer rinse water from the cleaning of a tank into Yellow Fork Creek, a water of the state, in an amount sufficient to be unsightly or deleterious, that produced color, odor, or other conditions in such a degree to create a nuisance, and/or which was in amounts to be acutely toxic to, or otherwise severely injure or kill aquatic life, or other animals, plants, or humans. Specifically, Respondent rinsed Advantage Portable Toilet and tank toilet deodorizer out of a tank near a storm water drain located on the Site. The rinsewater inside the storm water drain flowed down a hill and discharged into Yellow Fork Creek. The deodorizer contains biocide, which is hazardous to aquatic life in high concentration. The rinsewater discharge turned the water in the creek light blue in color and resulted in a fish kill.

On January 31, 2019 Respondent shall submitted documentation demonstrating employees have been trained on the proper management of chemicals, including but not limited to, the rinsing of tanks of portable deodorizer.

b. Pursuant to Indiana Code (“IC”) 13-18-4-5(a), a person may not throw, run, drain, or otherwise dispose into any of the streams or waters of this state, or cause, permit or suffer to be thrown, run, drained, allowed to seep, or otherwise disposed into any waters, any organic or inorganic matter that causes or contributes to a polluted condition of any waters, as determined by 327 IAC 2-1-6(a)(1), a rule adopted by the board of IC 13-18-4-1 and IC 13-8-4-3.

As noted during the May 21, 2018 inspection, the unpermitted discharge of portable deodorizer rinsewater into Yellow Fork Creek introduced contaminants and scum in the surface water resulting in a fish kill. Respondent responded to the spill by: 1) digging a pit at the end of the discharge pipe; 2) lining the pit with visqueen to capture residual rinsewater material; 3) placing hay bales and absorbent booms in the creek; 4) constructing a containment dam downstream; and 5) pumping contaminated water into vacuum trucks.

As noted during a follow-up inspection on May 22, 2018 by a representative of IDEM, no water quality violations were found on this date.

c. Pursuant to IC 13-30-2-1(1), 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 in any form that causes or would cause pollution that violates or would violate 327 IAC 2-1-6(a)(1), a rule adopted by the board under the environmental management laws.

As noted during the May 21, 2018 inspection, Respondent caused and/or allowed the discharge of portable deodorizer rinsewater that contains biocide, a contaminant or waste, into Yellow Fork Creek, a water of the state.

d. Pursuant to 327 IAC 2-6.1-5 and 327 IAC 2-6.1-7, any person who operates, controls, or maintains any facility from which a spill occurs shall upon discovery of a spill that damages the waters of the state so as to cause death or acute injury or illness to humans or animals:

(A) Contain the spill, if possible, to prevent additional spilled material from entering the waters of the state.

(B) Undertake or cause others to undertake activities needed to accomplish a spill response.

(C) As soon as possible, but within two (2) hours of discovery, communicate a spill response to the Department of Environmental Management.

(D) Submit to the Department of Environmental Management, a written copy of the spill report if requested in writing by the department.

(E) Except from modes of transportation other than pipelines, exercise due diligence and document attempts to notify the following:

i. For spills to surface water that cause damage, the nearest affected downstream water user located within ten (10) miles of the spill and in the state of Indiana; and

ii. For spills to soil outside the facility boundary, the affected property owner or owners, operator or operators, or occupant or occupants.

As noted during the May 21, 2018, inspection, Respondent failed to report a spill of containing portable deodorizer rinse water into the Yellow Fork Creek. The origin of the spill was Respondent’s storm water drain located at the Site.

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

2. Respondent shall comply with the statutes and rules listed in the findings above.

3. Respondent is assessed and agrees to pay a civil penalty of Thirteen Thousand Dollars ($13,000.00). Said penalty amount shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the Effective Date; the 30^th day being the “Due Date”.

4. The civil penalty is payable by check to the “Environmental Management Special Fund.” Checks shall include the Case Number of this action and shall be mailed to:

Indiana Department of Environmental Management

Office of Legal Counsel

IGCN, Room N1307

100 North Senate Avenue

Indianapolis, IN 46204

5. 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 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. Such interest shall be payable to the Environmental Management Special Fund, and shall be payable to IDEM in the manner specified in Paragraph 4, above.

6. 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.

7. 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.

8. 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.

9. 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 his applicable permits or any applicable Federal or State law or regulation.

10. 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.

11. 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.

12. Nothing in this Agreed Order shall prevent or limit IDEM or anyone acting on its behalf from communicating with the 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 communication with the EPA or any other agency or entity.

13. This Agreed Order shall remain in effect until IDEM issues a Resolution of Case letter to Respondent.

TECHNICAL RECOMMENDATION:				RESPONDENT:
Department of Environmental Management				David Schmidt
By: _________________________				By: _________________________
	Nancy Johnston, Section Chief
	Enforcement Section			Printed: ______________________
Office of Land Quality
				Title: ________________________
Date: __________________				Date: ________________________
				COUNSEL FOR RESPONDENT:
				By: __________________________
				Date: _________________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS		______	DAY OF	________________________,	20__.
				For the Commissioner:
				Signed on 5/28/19
				Peggy Dorsey, Assistant Commissioner
				Office of Land Quality