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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. Country Court tic 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.
Country
Court TIC LLC (Respondent), which owns/operates the Country Court Utility
Mobile Home Park Wastewater Treatment Plant, located at 10744 US HWY 27 S, Fort
Wayne, Allen County, Indiana (the Site).
3.
Respondent is authorized by its National Pollutant
Discharge Elimination System (NPDES) Permit No. IN0045292 (the Permit), to discharge wastewater
treated in accordance with the terms and conditions of the NPDES Permit from
its Wastewater Treatment Plant (WWTP) into St. Mary’s River, 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:
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Adam Schwerin, President |
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Country
Court TIC LLC |
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146
2nd St N, Suite 206 |
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Saint
Petersburg, FL 33701 |
6.
During
an investigation including an inspection on December 9, 2020 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 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), 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
December 9, 2019, IDEM staff observed and documented the facility’s discharge
into the receiving water contained a high amount of solids causing an unsightly
condition, in violation of IC 13-18-4-5, IC 13-30-2-1(1), and 327 IAC
2-1-6(a)(1).
9.
Pursuant
to Part II.B.1 of the Permit, the permittee is required to maintain in good
working order and efficiently operate all facilities and systems and related
appurtenances for collection and treatment in a manner which will minimize
upsets and discharges of excessive pollutants.
During the inspection on December
9, 2019, IDEM staff observed and documented the failure to maintain and
efficiently operate the systems causing excess clear water to enter the
facility which resulted in a hydraulic load and subsequent discharge of solids,
in violation of Part II.B.1.
10.
On
October 1, 2019,
IDEM sent Inspection Summary Letter(s) to Respondent outlining violations at
the WWTP. The letters required a response detailing actions taken to correct
the violations. IDEM received responses to the letter(s) explaining compliance
actions Respondent took or would take to address the violations. However, some
of the violations noted above continue at the WWTP.
11.
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 9 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, specifically including
the actions Respondent will take to:
A.
Develop
and implement a preventative maintenance program for WWTP equipment, and
document all maintenance (preventative and repair) in a permanent record;
B.
Evaluate
and repair all facilities and systems and related appurtenances for collection
and treatment including but not limited to the use of camera work.
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.
4.
Respondent shall, after
completion of the work required pursuant to the approved CP from Paragraph 3
above, demonstrate 6 consecutive months of compliance (Compliance
Demonstration) with the terms and conditions of the Permit.
5.
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.
6.
The
plans required by Order Paragraphs 3 and 5 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.
7.
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 6 month Compliance Demonstration, as specified in Paragraph 4 above, will
re-start. Failure to
achieve compliance at the conclusion of work under an AAP may subject
Respondent to additional enforcement action.
8.
Within 10 days of each
required milestone date included in the CP or AAP, Respondent shall submit to
IDEM a written progress report or notification of completion for each
milestone.
9.
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.
10.
All
submittals required by this Agreed Order, unless Respondent is notified
otherwise in writing by IDEM, shall be sent to:
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Grant
Chaddock, 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 |
11.
Respondent
is assessed and agrees to pay a civil penalty of Two Thousand Two Hundred Dollars
($2,200). 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.”
12.
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 submit the CP within the
required time period. |
$250
per week late, or part thereof. |
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4 |
For violations of terms and
conditions of the Permit during the Compliance Demonstration. |
$400
per violation |
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5 |
Failure
to submit the AAP, if required, within the given time
period. |
$500
per week late, or part thereof. |
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6 |
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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7 |
Failure to meet and/or implement any milestone date
set forth in the approved CP or AAP. |
$500
per week late, or part thereof. |
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8 |
Failure to
submit to IDEM a written progress
report within 10 days of each milestone date. |
$150
per week late, or part thereof. |
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9 |
Failure to operate the WWTP as efficiently and
effectively as possible prior to Compliance Demonstration. |
$200
per violation. |
13.
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.
14.
Civil
and stipulated penalties are payable by check to the “Environmental Management
Special Fund.” Checks shall include the Case Number 2020-27055-W of this action
and shall be mailed to:
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Indiana
Department of Environmental Management |
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Accounts
Receivable |
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IGCN,
Room 1340 |
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100
North Senate Avenue |
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Indianapolis,
Indiana 46204 |
15.
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.
16.
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.
17.
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.
18.
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.
19.
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.
20.
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.
21.
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.
22.
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.
23.
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 |
Country Court TIC 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 November 19, 2020 |
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Martha
Clark Mettler |
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Assistant
Commissioner |
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Office
of Water Quality |