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STATE
OF INDIANA |
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BEFORE
THE INDIANA DEPARTMENT |
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COMMISSIONER
OF THE DEPARTMENT Complainant, v. Mansard Apartments, LLC 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.
Mansard
Apartments, LLC d/b/a Jackson Heights Mobile Home Park (Respondent owns and operates the Jackson Heights
Mobile Home Park including the Wastewater Treatment Plant (WWTP), located at
1552 N. Boatman Road, Scottsburg, Scott County, Indiana (the Site).
3.
Respondent
is authorized by National Pollutant Discharge Elimination System (NPDES) Permit
Number IN0048763 (the Permit) to discharge wastewater treated in accordance
with the terms and conditions of the NPDES Permit from the WWTP into Honey Run
Creek, via Outfall 001. The collection system is comprised of 100% separate
sanitary sewers by design with no overflow or bypass points.
As
the recipient of the Permit, the Mansard Apartments, LLC is also known as
permittee.
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:
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Greg Grena, Principal Member |
Bruce Smith,
Registered Agent |
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Mansard
Apartments, LLC |
Mansard
Apartments, LLC |
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812 Grizzly
Drive |
6440
Westfield Boulevard |
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Great Falls,
Montana 59404 |
Indianapolis,
Indiana 46220 |
6.
During
an investigation conducted by a representative of IDEM, violations were found,
as described below.
7.
327
Indiana Administrative Code (IAC) 5-2-8(1) states the Permittee shall comply
with all terms and conditions 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.
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.
Network
Discharge Monitoring Reports (NetDMRs) and Monthly
Monitoring Reports (MMRs) submitted by Respondent for the period of June 1,
2017 through May 31, 2018, revealed a violation of an effluent limitation
contained in Part I.A.1 of the Permit as follows:
The
monthly average concentration limitation for Ammonia (as nitrogen) was exceeded
during November 2017.
Respondent
failed to comply with effluent limitation contained in the Permit, in violation
of Part I.A.1 of the Permit.
9.
Pursuant
to 327 IAC 5-2-8(9) and Part II.B.1 of the Permit, 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 that are:
A.
installed
or used by the permittee; and
B.
necessary for achieving compliance with the terms
and conditions of the permit.
Pursuant to
Part II.B.1(b) of the Permit, the permittee shall
operate in a manner which will minimize upsets and discharges of excessive
pollutants.
Pursuant to
Part II.B.1(f) of the Permit, the permittee shall have
an ongoing preventative maintenance program for the sanitary sewer system.
As
noted during IDEM inspections on July 23, 2018 and September 11, 2018 the
lagoon divider was broken and not operating as a two-cell lagoon, in violation
of 327 IAC 5-2-8(11) and Part II.B.1 the Permit.
It
was also stated in the September 11, 2018 inspection that there were structural
deficiencies with the chlorine contact chamber that was causing noticeable
amounts of groundwater being taken in around the tank seam, in violation of
Part II.B.I and Part II.B.1(b) of the Permit.
In
addition, it was determined that the Site continues to have excess inflow and
infiltration (I/I) in the collection system and Respondent does not have an adequate
preventative maintenance program for the sanitary sewer system, in violation of
Part II.B.I and Part II.B.1(f) of the Permit.
10.
Pursuant
to IC 13-18-11, all water or WWTPs and water distribution systems must be under
the supervision of an operator whose competency is certified by the
commissioner in a classification corresponding to the classification of the
plant or distribution system to be supervised.
Pursuant to
327 IAC 5-22-3(11), the certified operator means the wastewater treatment
certified operator who makes process control or system integrity decisions
about the overall daily operation, maintenance, management, or supervision of a
wastewater treatment plant necessary to meet the performance requirements and
limits of the assigned permit and any applicable local ordinance or other
regulatory requirements.
Pursuant
to Part II.A.14 of the Permit, the permittee shall have the WWTP under the
direct supervision of an operator certified by the Commissioner in a
classification corresponding to the classification of the WWTP.
Based
on conversations with the Utility Services staff on July 23, 2018 and with Respondent
on September 11, 2018; the certified operator signing for the facility is
rarely on-site and duties are performed by an unlicensed member of the Utility
Services staff, in violation of IC 13-18-11, 327 IAC 5-22-3(11), and Part
II.A.14.
11.
Pursuant
to 327 IAC 5-2-8(12)(D) and Part II.B.2 of the Permit,
bypassing is prohibited, and the Commissioner may take enforcement action
against a permittee for bypass unless certain conditions are met.
Respondent
failed to prevent an unpermitted bypass on September 11, 2018 resulting in
3,500 gallons of raw wastewater infiltrating public land, in violation of 327
IAC 5-2-8(12)(D) and Part II.B.2 of the Permit.
12.
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 Paragraphs 8 through 11 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 30 days of the Effective Date, Respondent shall
develop and submit to IDEM for approval a Preventative Maintenance Plan (PMP)
for the sanitary sewer collection system, which includes methods and milestone
dates for locating and eliminating sources of inflow and infiltration (I/I) in
the sewer system.
The
PMP is subject to IDEM approval. In the event IDEM determines the PMP is
deficient or otherwise unacceptable, Respondent shall revise and resubmit the
PMP to IDEM in accordance with IDEM’s notices. After three (3) submissions of
the PMP by Respondent, IDEM may seek civil enforcement of this Order.
Respondent,
upon receipt of written notification from IDEM, shall immediately implement the
approved PMP.
4.
Immediately upon the
Effective date, Respondent shall cease unpermitted bypasses at the Site.
5.
Within 30 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, specifically including the
actions Respondent will take to:
A.
achieve and maintain
compliance with effluent limitations contained in the Permit;
B.
evaluate and implement
means to eliminate bypasses;
C.
eliminate sources of
inflow and infiltration (I/I) in the sewer system;
D.
repair and/or replace WWTP
equipment; and
E.
comply with reporting requirements of the permit.
The
CP shall include an implementation and completion schedule, including specific
milestone dates.
6.
Respondent shall, after completion of the work
required pursuant to the approved CP from Paragraph 5 above, demonstrate 12
consecutive months of compliance (Compliance Demonstration) with the terms and
conditions of the Permit.
7.
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.
8.
The plans required by Order Paragraphs 5 and 7
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.
9.
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 6 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.
10.
Within 10 days of the completion of each
required milestone included in the CP or AAP, Respondent shall submit to IDEM a
written progress report or notification of completion for each milestone.
11.
Beginning on the Effective Date and continuing
until the successful completion of implementation of the approved CP as
required by Paragraph 5 above, Respondent shall, at all times, operate its
existing wastewater treatment plant as efficiently and effectively as possible.
12.
All
submittals required by this Agreed Order, unless Respondent is notified
otherwise in writing by IDEM, shall be sent to:
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Matthew
Guell, Enforcement Case Manager |
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Office
of Water Quality – IGCN 1255 |
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Indiana
Department of Environmental Management |
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100
North Senate Avenue |
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Indianapolis,
IN 46204-2251 |
13.
Respondent
is assessed and agrees to pay a civil penalty of Five Hundred Sixty Dollars ($560).
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.”
14.
In
the event the terms and conditions of the following paragraphs are violated,
IDEM may assess and Respondent shall pay the corresponding stipulated penalty:
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Paragraph |
Violation |
Stipulated Penalty |
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3 |
Failure
to develop and submit a PMP. |
$150
per week late, or part thereof. |
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3 |
Failure
to implement the approved PMP. |
$250
per week late, or part thereof. |
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4 |
Failure
to cease bypasses |
$200
per violation. |
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5 |
Failure
to submit the CP within the required time period. |
$250
per week late, or part thereof. |
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6 |
For
violations of terms and conditions of the Permit during the Compliance
Demonstration. |
$400
per violation |
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7 |
Failure
to submit the AAP, if required, within the given time period. |
$500
per week late, or part thereof. |
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8 |
Failure
to modify the CP and/or AAP, if required, within the given time period. |
$500
per week late, or part thereof. |
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9 |
Failure
to meet and/or implement any milestone date set forth in the approved CP or
AAP. |
$500
per week late, or part thereof. |
|
10 |
Failure to submit to IDEM a written
report of progress within 10 days of each calendar quarter. |
$150
per week late, or part thereof. |
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11 |
Failure
to operate the WWTP as efficiently and effectively as possible prior to
Compliance Demonstration. |
$200
per violation. |
15.
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.
16.
Civil
and stipulated penalties are payable by check to the “Environmental Management
Special Fund.” Checks shall include the Case Number 2018-25857-W of this action
and shall be mailed to:
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Office
of Legal Counsel |
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Indiana
Department of Environmental Management |
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IGCN,
Room N1307 |
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100
North Senate Avenue |
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Indianapolis,
IN 46204 |
17.
This
Agreed Order shall apply to and be binding upon Respondent, 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.
18.
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.
19.
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.
20.
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.
21.
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 permits or any applicable Federal or State law
or regulation.
22.
Complainant
does not, by his 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.
23.
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 Notice of Violation.
24.
Nothing
in this Agreed Order shall prevent IDEM (or anyone acting on its behalf) from
communicating with the United States Environmental Protection Agency (US 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
the US EPA or any other agency or entity.
25.
This
Agreed Order shall remain in effect until Respondent has complied with the
terms and conditions of this Agreed Order and IDEM issues a Resolution of Case
(close out) letter to Respondent.
REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK.
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TECHNICAL
RECOMMENDATION: |
RESPONDENT: |
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Department
of Environmental Management |
Mansard Apartments, LLC |
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By:__________________________ |
By:________________________ |
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Samantha K.
Groce, Chief |
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Water
Enforcement Section |
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Surface Water, Operations & |
Printed:_____________________ |
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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 April 24,
2019 |
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Martha
Clark Mettler |
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Assistant
Commissioner |
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Office
of Water Quality |