STATE OF INDIANA |
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BEFORE THE INDIANA DEPARTMENT OF |
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ENVIRONMENTAL MANAGEMENT |
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COUNTY OF MARION |
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COMMISSIONER OF THE DEPARTMENT |
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OF ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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v. |
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Case No. 2016-23940-W |
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Gilchrist
& Soames, Inc., |
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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.
Respondent
is Gilchrist & Soames, Inc. (Respondent), which owns and operates an
industrial facility used to manufacture toiletry products, located at 2425 East
Perry Road, in Plainfield, Hendricks County, Indiana (the Site).
3.
Respondent
is authorized by Industrial Wastewater Pretreatment (IWP) Permit Number
INP000625 (the Permit) to discharge process wastewater from the Site into
Plainfield South Publicly Owned Treatment Works (POTW) via Outfall 001, in
accordance with the terms and conditions of the IWP Permit.
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 to Gilchrist
& Soames, Inc.
6.
During
an investigation conducted by a representative of IDEM, violations were found,
as described below.
7.
Pursuant
to 327 Indiana Administrative Code (IAC) 5-2-8(1), and Part II.A.1 of the
Permit, Respondent is required to comply with all terms and conditions of the
Permit.
Pursuant
to 327 IAC 5-2-15(a) and Part I.C.2 of the Permit, the Respondent shall submit
monitoring reports to IDEM containing results obtained during the previous
month and shall be postmarked no later than the 28th day of the month following
each completed monitoring period. These
reports shall include the Discharge Monitoring Reports (DMRs) and the Monthly
Monitoring Reports (MMRs).
IDEM
records indicate that Respondent did not submit DMRs and MMRs within the
required time period for the months of November 2013; January, February, March,
April, May, June, July, August, September, October, November, and December
2014; January, February, July, August, and September 2015; and January,
February, and March 2016 for Outfall 001.
Respondent
failed to comply with the reporting requirements contained in the Permit, in
violation of 327 IAC 5-2-15(a), Part I.C.2 of the Permit, 327 IAC 5-2-8(1), and
Part II.A.1 of the Permit.
8.
On
November 10, 2015, IDEM issued a violation letter to Respondent for failing to
submit the required DMRs and MMRs. The
letter outlined actions necessary to achieve compliance. In addition to the violation letter, IDEM
representatives have been in regular communication with Respondent regarding
their failure to submit the required documents.
Following IDEM’s notifications, Respondent submitted all DMRs and MMRs
referenced in Paragraph 7 above; however they were not submitted within the
required time period.
9.
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 Paragraph 7 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 permit conditions listed in the findings above at
issue.
3.
Beginning
on the Effective Date, Respondent agrees to submit all monthly monitoring
reports to IDEM by the 28th day of the month following each
completed monitoring period.
4.
Within
60 days of the Effective Date, Respondent agrees to submit DMRs and MMRs
electronically via NetDMR, by the 28th day
of the month following the monitoring period.
NetDMR is a free web-based tool that allows
NPDES permittees to electronically sign and submit DMRs to IDEM. NetDMR instructions
are located at http://in.gov/idem/cleanwater/2422.htm and included as
Attachment A.
5.
Beginning within 60 days of the Effective
Date, Respondent shall demonstrate six consecutive months of compliance
(Compliance Demonstration) with all terms and conditions of the Permit. Specifically, Respondent shall demonstrate
compliance with all monitoring and reporting requirements contained in the
Permit. During the Compliance Demonstration Period, Respondent shall be subject
to stipulated penalties, as specified below, for violations noted therein. In the event that Respondent fails to make
the Compliance Demonstration, Respondent shall, within sixty days of becoming
aware that the Compliance Demonstration cannot be achieved, develop and submit
to IDEM, for approval, an Additional Action Plan which identifies the additional
actions that Respondent will take to achieve and maintain compliance with the
Permit. The Additional Action Plan, if
required, shall include an implementation and completion schedule, including
specific milestone dates.
6.
The Additional Action Plan, if required, is
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.
Respondent, upon receipt of written
notification from IDEM, shall immediately implement the approved plan and
adhere to the milestone dates therein.
The approved Additional Action Plan shall be incorporated into the
Agreed Order and shall be deemed an enforceable part thereof. Failure by Respondent to submit any plan by
the specified date or to meet any of the milestones in the approved plan will
subject Respondent to stipulated penalties as described below. Failure to achieve compliance at the
conclusion of work under the Additional Action Plan will subject Respondent to
additional enforcement action.
Respondent shall submit to IDEM a written report of progress or completion
for each milestone date included in the Additional Action Plan.
7.
All
submittals required by this Agreed Order, unless Respondent is notified
otherwise in writing by IDEM, shall be sent to:
Edward
Judson, Enforcement Case Manager |
Office
of Water Quality – IGCN 1255 |
Indiana
Department of Environmental Management |
100
North Senate Avenue |
Indianapolis,
IN 46204-2251 |
8.
Respondent
is assessed and agrees to pay a civil penalty of Seven Thousand Two Hundred
Dollars ($7,200). 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.”
9.
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 submit monthly monitoring reports by the 28th day of the month
following each completed monitoring schedule. |
$250
per week late, or part thereof. |
4 |
Failure
to submit DMRs and MMRs electronically via NetDMR
within the given time period. |
$250
per week late, or part thereof. |
5, 6 |
Failure
to submit or modify the Additional Action Plan, if required, within the given
time period, OR adhere to the milestone dates therein. |
$250
per week late, or part thereof. |
5 |
For
violations of monitoring and reporting requirements contained in the Permit
during the Compliance Demonstration period. |
$250
per violation. |
10.
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.
11.
Civil
and stipulated penalties are payable by check to the “Environmental Management
Special Fund.” Checks shall include the
Case Number 2016-23940-W of this action and shall be mailed to:
Office
of Legal Counsel |
Indiana
Department of Environmental Management |
IGCN,
Rm N1307 |
100
North Senate Avenue |
Indianapolis,
IN 46204 |
12.
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.
13.
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.
14.
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.
15.
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.
16.
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 permit or any applicable Federal
or State law or regulation.
17.
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.
18.
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.
19.
Nothing in this Agreed
Order shall prevent IDEM [or anyone acting on its behalf] from communicating
with the United States Environmental Protection Agency (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 EPA or any other agency or entity.
20.
This Agreed Order shall
remain in effect until Respondent has complied with all 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 |
Gilchrist & Soames, Inc. |
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By:__________________________ |
By:________________________ |
Dave
Tennis, Chief |
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Water
Enforcement Section |
Printed:______________________ |
Surface
Water, Operations & |
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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 23, 2016 |
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Martha
Clark Mettler |
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Assistant Commissioner |
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Office of Water Quality |