STATE
OF INDIANA |
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BEFORE
THE INDIANA DEPARTMENT |
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COMMISSIONER
OF THE DEPARTMENT Complainant, v. huber family restaurant, inc., 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.
Huber
Family Restaurant, Inc. (Respondent) owns and/or operates the facility, located
at 2421 Engle Road, Borden, Clark County,
Indiana (the Site).
3.
Respondent
is authorized by National Pollutant Discharge Elimination System (NPDES) Permit
Number IN0055794 (the Permit) to discharge wastewater treated in accordance
with the terms and conditions of the NPDES Permit from the Wastewater Treatment
Plant (WWTP) into an unnamed tributary to Thompson Creek, via Outfall 001 at
the Site.
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:
Katie Huber,
President |
Huber Family
Restaurant, Inc. |
2421 Engle
Road |
Borden,
Indiana |
6.
During
an investigation on October 30, 2018 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 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.
Pursuant
to IC 13-18-4-5, a person may not: (1) throw, run, drain, or otherwise dispose;
or (2) cause, permit, or suffer to be thrown, run, drained, allowed to seep, or
otherwise disposed; into any of the streams or waters of Indiana any organic or
inorganic matter that causes or contributes to a polluted condition of any of
the streams or waters of Indiana.
Pursuant
to IC 13-30-2-1(1), it is unlawful for any person to discharge, emit, cause or
allow any contaminant or waste, including any noxious odor, either alone or in
combination with contaminants from other sources in the environment in any form
that causes or would cause pollution that violates or would violate rules,
standards, or discharge or emission requirements adopted by the appropriate
board under the environmental management laws.
Pursuant
to 327 IAC 2-1-6(a)(1) and Part 1.B.1 of the Permit,
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 are in amounts
sufficient to be acutely toxic to, or to otherwise severely injure or kill
aquatic life, other animals, plants, or humans.
During
the inspection on October 30, 2018, IDEM staff observed and documented that the
discharge from the lagoon was black in color, contained a visible oil sheen,
and was odorous. This caused the unnamed tributary to Thompson Creek and
Thompson Creek to contain deposits, an oil sheen, scum, the waters were black
in color, and the waters were odorous to such a degree as to create a nuisance,
in violation of IC 13-18-4-5, IC 13-30-2-1(1), 327 IAC 2-1-6(a)(1), and Part
1.B.1 of the Permit.
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 Reports of Operation (MROs) submitted by
Respondents revealed violations of
effluent limitations contained in Part I.A.1 of the Permit as follows:
1.
The
daily maximum average concentration limitation for ammonia nitrogen was
exceeded during June and August 2018.
2.
The
daily maximum average loading limitation for ammonia nitrogen was exceeded
during June and August 2018.
3.
The
monthly average concentration limitation for ammonia nitrogen was exceeded
during November 2017, June and August 2018.
4.
The
monthly average loading limitation for ammonia nitrogen was exceeded during
June 2018.
Respondents
failed to comply with the effluent limitations from Outfall 001 contained in
the Permit, in violation of Part I.A.1 of the Permit.
10.
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.
During
the inspection on October 30, 2018, the following deficiencies were identified:
1.
the aerator was not operational;
2.
the septic tank contained a thick layer of
sludge; and,
3.
the effluent filter on the septic tank was
clogged,
each in violation of 327 IAC 5-2-8(9) and
Part II.B.1 of the Permit.
11.
Pursuant to 327 IAC 5-22-3(11), Responsible charge 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. The
responsible charge operator must assure that written and electronic monitoring
reports are prepared under his or her direction or supervision in accordance
with a system designed to assure that qualified personnel properly gather and
evaluate the information submitted. The responsible charge operator certifies
that, based on his or her inquiry of the persons who manage the system or those
persons directly responsible for gathering the information, the information
submitted is, to the best of the knowledge and belief of the responsible charge
operator, true, accurate, and complete.
During the inspection on October 30,
2018, IDEM staff observed and documented inadequate on-site attendance by the
certified operator, in violation of 327 IAC 5-22-3(11).
12.
Pursuant
to Part I.C.5 of the Permit, for each measurement or sample taken pursuant to
the requirements of this permit, the permittee shall maintain records of all
monitoring information and monitoring activities, including:
a)
The date, exact place and time of sampling or
measurement;
b)
The person(s) who performed the sampling or
measurements;
c)
The date(s) and time(s) analyses were performed;
d)
The person(s) who performed the analyses;
e)
The analytical techniques or methods used; and
f)
The results of such measurements and analyses.
During the
inspection on October 30, 2018, IDEM staff observed and documented all records
of monitoring information did not include sample and analyses times, in
violation of Part I.C.5 of the Permit.
13.
Pursuant
to 327 IAC 5-2-22 and Part II.C.6 of the Permit, all reports required by
permits and other information requested by the Commissioner shall be signed by
a person described in 327 IAC 5-2-22(a), or by a duly authorized representative
of that person, and must be certified as accurate.
During
the inspection on October 30, 2018, IDEM staff observed and documented
Respondent failed to have the DMRs and MMRs signed by a duly authorized person,
in violation of 327 IAC 5-2-22 and Part II.C.6 of the Permit.
14.
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 13 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.
Immediately
upon the Effective Date, Respondent shall immediately cease and desist any
release of discharge from the Site to waters of the State.
4.
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, specifically
ammonia nitrogen;
B.
Assure proper removal,
storage and disposal of sludge solids;
C.
Develop and implement a
preventative maintenance program for WWTP equipment, and document all
maintenance (preventative and repair) in a permanent record;
D.
Evaluate and implement
means to eliminate bypasses; and
E.
Comply with reporting
requirements of the permit.
The
CP shall include an implementation and completion schedule, including specific
milestone dates.
5.
Respondent shall, after completion of the work
required pursuant to the approved CP from Paragraph 4 above, demonstrate 12
consecutive months of compliance (Compliance Demonstration) with the terms and
conditions of the Permit.
6.
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.
7.
The plans required by Order Paragraphs 4 and 6 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.
8.
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 5 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.
9.
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.
10.
Beginning on the Effective Date and continuing
until the successful completion of implementation of the approved CP as
required by Paragraph 4 above, Respondent shall, at all times, operate its
existing wastewater treatment plant as efficiently and effectively as possible.
11.
All
submittals required by this Agreed Order, unless Respondent is notified
otherwise in writing by IDEM, shall be sent to:
Olivia
Kuss, Enforcement Case Manager |
Office
of Water Quality – IGCN 1255 |
Indiana
Department of Environmental Management |
100
North Senate Avenue |
Indianapolis,
IN 46204-2251 |
12.
Respondent
is assessed and agrees to pay a civil penalty of One Thousand Three Hundred
Forty Dollars ($1,340). 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.”
13.
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 |
4 |
Failure
to submit the CP within the required time period. |
$250
per week late, or part thereof. |
5 |
For
violations of terms and conditions of the Permit during the Compliance
Demonstration. |
$400
per violation |
6 |
Failure
to submit AAP |
$500
per week late, or part thereof. |
7 |
Failure
to modify the CP and/or AAP, if required, within the given time period. |
$500
per week late, or part thereof. |
8 |
Failure
to meet and/or implement any milestone date set forth in the approved CP or
AAP. |
$500
per week late, or part thereof. |
9 |
Failure to submit to IDEM a written
report of progress within 10 days of each calendar quarter. |
$150
per week late, or part thereof. |
10 |
Failure
to operate the WWTP as efficiently and effectively as possible prior to
Compliance Demonstration. |
$200
per violation. |
14.
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.
15.
Civil
and stipulated penalties are payable by check to the “Environmental Management
Special Fund.” Checks shall include the Case Number 2018-25862-W of this action
and shall be mailed to:
Office
of Legal Counsel |
Indiana
Department of Environmental Management |
IGCN,
Room N1307 |
100
North Senate Avenue |
Indianapolis,
IN 46204 |
16.
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.
17.
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.
18.
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.
19.
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.
20.
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.
21.
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.
22.
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.
23.
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.
24.
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.
TECHNICAL RECOMMENDATION: Department of
Environmental Management |
RESPONDENT: Huber
Family Restaurant, Inc. |
By:__________________________ |
By:________________________ |
Samantha
K. Groce, Chief |
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Water
Enforcement Section |
Printed:_____________________ |
Surface
Water, Operations & |
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Enforcement
Branch |
Title:_______________________ |
Office
of Water Quality |
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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 ____________________, 201_. |
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For the
Commissioner: |
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Signed on April 9, 2019 |
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Martha
Clark Mettler |
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Assistant
Commissioner |
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Office of
Water Quality |