STATE
OF INDIANA |
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BEFORE
THE INDIANA DEPARTMENT |
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COMMISSIONER
OF THE DEPARTMENT Complainant, v. Henryville Membership Sanitation Corporation, 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.
Henryville
Membership Sanitation Corporation (Respondent) owns/operates the Henryville
Membership Sanitation Corporation – Memphis Wastewater Treatment Plant, located
at 15100 Silver Maple Court, Memphis, Clark County, Indiana (the Site).
3.
Respondent
is authorized by its National Pollutant Discharge Elimination System (NPDES)
Permit No. IN0061671 (the Permit), to discharge wastewater treated in
accordance with the terms and conditions of the NPDES Permit from its Wastewater
Treatment Plant (WWTP) into Silver Creek from Outfall 001.
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:
Greg Bagshaw,
President |
Douglas C.
Dunlevy, Registered Agent |
Henryville
Membership Sanitation |
Henryville
Membership Sanitation |
Corporation |
Corporation |
17608
Mountain Grove Rd |
Box 62, 104
E. Main St. |
Henryville,
IN 47126 |
Henryville,
IN 47126 |
6.
During
an investigation including an inspection on September 19, 2019 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 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.
Discharge
Monitoring Reports (DMRs) and Monthly Reports of Operation (MROs) submitted by
Respondent for the period of July 2019 through May 2020 revealed violations of
effluent limitations contained in Part I.A.1 of the Permit as follows:
A.
The
weekly maximum average concentration limitation for total suspended solids
(TSS) was exceeded during July through September 2019.
B.
The
monthly average concentration limitation for TSS was exceeded during July
through September 2019.
C.
The
weekly maximum average loading limitation for TSS was exceeded August and
September 2019.
D.
The
monthly average loading limitation for TSS was exceeded during August and
September 2019.
E.
The
daily minimum limit for dissolved oxygen (DO) was not met during September
2019.
Respondent
failed to comply with the effluent limitations from Outfall 001 contained in
the Permit, in violation of Part I.A.1 of the Permit.
9.
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 I.A.2 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
e. 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 September 19, 2019, IDEM staff observed and documented that
the effluent was grayish in color and had a significant odor, and that Silver
Creek had a black/gray color, significant odor, and solids deposited in the bed;
in violation of IC 13-18-4-5, IC 13-30-2-1(1),
327 IAC 2-1-6(a)(1), and Part I.A.2 of the Permit.
10.
Pursuant
to 327 IAC 5-2-8(11)(C) and Part II.C.3 of the Permit, the permittee shall
orally report information on any of the following types of noncompliance within
twenty-four (24) hours from the time the permittee becomes aware of such
noncompliance:
i. Any
unanticipated bypass that exceeds any effluent limitation in the permit.
ii. Violation
of a maximum daily discharge limitation for any of the pollutants listed by the
commissioner in the permit to be reported within twenty-four (24) hours.
iii. Any
noncompliance that may pose a significant danger to human health or the
environment. Reports under this item shall be made as soon as the permittee
becomes aware of the noncomplying circumstances to (888) 233-7745.
iv. Any
upset that exceeds any effluent limitation in the permit.
A
written submission shall also be provided within five (5) days of the time the
permittee becomes aware of the circumstances.
Respondent
failed to orally report within 24 hours from the time Respondent became aware
of the noncompliance observed by IDEM on September 19, 2019 and failed to
provide a written submission within five (5) days Respondent become aware of
the circumstance, in violation of 327 IAC 5-2-8(11)(C) and Part II.C.3 of the
Permit.
11.
Pursuant
to 327 IAC 5-2-8(4) and Part II.A.3 of the Permit, the permittee shall submit
any information that permittee knows or has reason to believe would constitute
cause for modification or revocation and reissuance of the permit at the earliest
time such information becomes available, such as plans for physical alterations
or additions to the facility that could significantly change the nature of, or
increase the quantity of, pollutants discharged.
During
the inspection on September 19, 2019, IDEM staff learned that Respondent had
been accepting industrial waste at an unmonitored dumping station/manhole.
Samples of the waste were not taken and the volume of dumps were not recorded.
The Permit does not authorize Respondent to accept industrial flow to the WWTP.
Respondent failed to provide information regarding the industrial waste dumped
at the unmonitored dumping station/manhole, in violation of 327 IAC 5-2-8(4)
and Part II.A.3 of the Permit.
12.
Pursuant
to 40 CFR, Part 136 and Part I.B.5 of the Permit, the analytical and sampling
methods used shall conform to the current version of 40CFR, Part 136, unless
otherwise specified within this permit.
During
the inspection on September 19, 2019, IDEM staff determined the Respondent was
not following an approved method for CBOD, in violation of 40 CFR, Part 136 and
Part I.B.5 of the Permit.
13.
Pursuant
to 327 IAC 3-2-1.5 and Part II.A.15 of the Permit, no person shall cause or
allow the construction, installation, or modification of any water pollution treatment/control
facility or sanitary sewer without a valid construction permit issued by the
commissioner.
Pursuant
to 327 IAC 3-2-2, construction shall not commence until all necessary state
approvals and permits are obtained.
On
October 28, 2019, IDEM determined that Respondent had begun construction at the
Site before applying for a construction permit, in violation of 327 IAC
3-2-1.5, Part II.A.15 of the Permit, and 327 IAC 3-2-2.
A
Construction Permit Approval No. 23454 was issued on April 20, 2020 for a
Lagoon Screening Facility Project.
14.
On October
4, 2019, IDEM sent an Inspection Summary Letter to Respondent outlining
violations at the WWTP. On September 20 and 21, 2019, Respondent removed waste
sediments located in Silver Creek by Outfall 001. On September 24, 2019,
Respondent bolted down the unmonitored dumping station/manhole where industrial
waste had been accepted. The other violations noted above continue at the WWTP.
15.
Orders
of the Commissioner are subject to administrative review by the Office of
Environmental Adjudication under IC 4-21.5; however, in recognition of the
settlement reached, Respondent acknowledges notice of this right and 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.
Respondent
shall immediately cease accepting industrial waste.
4.
Immediately upon the Effective Date, Respondent shall orally
report noncompliance in accordance with 327 IAC 5-2-8(11)(C) and Part II.C.3 of the Permit within 24 hours
from the time of discovery and provide a written submission within five (5)
days as instructed on State Form 52415.
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, specifically TSS and DO;
B. Comply with reporting requirements of the permit; and
C. Provide adequate influent information.
The
CP shall include an implementation and completion schedule, including specific
milestone dates.
Respondent
shall notify IDEM in writing of variations to the approved CP.
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 or any
modified 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 AAP may subject Respondent to additional
enforcement action.
10.
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 on March
31st, June 30th, September 30th, and December
31st until completion of the CP or AAP.
11.
Beginning on the Effective Date and continuing
until the successful completion of the approved CP, Respondent shall, at all
times, operate its existing WWTP 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:
David
Koehler, Enforcement Case Manager |
Office
of Water Quality – IGCN 1255 |
Indiana
Department of Environmental Management |
100
North Senate Avenue |
Indianapolis,
IN 46204-2251 |
13.
Respondent
is assessed and agrees to pay a civil penalty of Forty Nine Thousand Eight
Hundred Fifty Dollars ($49,850). 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:
Paragraph |
Violation |
Stipulated Penalty |
3 |
Failure to cease industrial waste acceptance. |
$500 per violation. |
4 |
Failure to orally report noncompliance and/or
submit a written report within 5 days. |
$150 per week late, or part thereof. |
5 |
Failure
to submit the CP within the required time period. |
$250
per week late, or part thereof. |
6 |
For
violations of terms and conditions of the Permit during the Compliance
Demonstration. |
$400
per violation |
7 |
Failure
to submit the AAP, if required, within the given time period. |
$500
per week late, or part thereof. |
8 |
Failure
to modify the CP and/or AAP, if required, within the given time period. |
$500
per week late, or part thereof. |
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 progress
report within 10 days of each calendar quarter. |
$150
per week late, or part thereof. |
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 2019-27053-W of this action
and shall be mailed to:
Indiana
Department of Environmental Management |
Accounts
Receivable |
IGCN, Room
1340 |
100 North
Senate Avenue |
Indianapolis,
Indiana 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.
TECHNICAL RECOMMENDATION: |
RESPONDENT: |
Department
of Environmental Management |
Henryville Membership Sanitation
Corporation |
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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 November 6, 2020 |
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Martha
Clark Mettler |
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Assistant
Commissioner |
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Office
of Water Quality |