STATE OF INDIANA

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SS:

BEFORE THE INDIANA DEPARTMENT OF

 

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ENVIRONMENTAL MANAGEMENT

COUNTY OF MARION

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COMMISSIONER OF THE DEPARTMENT

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OF ENVIRONMENTAL MANAGEMENT,

)

 

)

Complainant,

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)

v.

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Case No. 2018-25293-W

 

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town of kingsford heights,

)

 

)

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 the Town of Kingsford Heights (Respondent), which owns/operates the Wastewater Treatment Plant (WWTP), located at 800 Lexington Street, in Kingsford Heights, La Porte County, Indiana (the Site).

 

3.             Respondent is authorized by its National Pollutant Discharge Elimination System (NPDES) Permit No. IN0023337 (the Permit), to discharge wastewater treated in accordance with the terms and conditions of the NPDES Permit from its WWTP into Porter Ditch 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:

 

Renee Wiltfong, President

Town Council of Kingsford Heights

504 Grayton Road

Kingsford Heights, IN  46346

 

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) Respondent 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.

 

Discharge Monitoring Reports (DMRs) and Monthly Reports of Operation (MROs) submitted by Respondent for the periods of April 2015 to July 2018 revealed effluent limitation violations and monitoring requirement violations contained in the Permit as follows:

 

a.             The maximum weekly average and monthly average concentration and loading for ammonia nitrogen was exceeded during April and May 2017, and January 2018.

 

b.             The maximum weekly average for Carbonaceous Biological Oxygen Demand (CBOD) loading was exceeded in May 2017.

 

c.             The monthly average percent removal for Total Suspended Solids was exceeded in April 2017.

 

d.             The daily minimum of residual chlorine in the contact tank was not maintained in August 2015.

 

Respondent failed to comply with the effluent limitations and the sampling requirements, in violation of Part I.A.1 of the Permit.

 

9.             Pursuant to Part II.B.1(a) of the Permit, and in accordance with 327 IAC 5-2-8(9), 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 installed or used by the permittee and 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 the permitted facility in a manner which will minimize upsets and discharges of excessive pollutants. The permittee shall properly remove and dispose of excessive solids and sludge.

 

Pursuant to Part II.B.1(c) of the Permit, the permittee shall provide an adequate operating staff which is duly qualified to carry out the operation, maintenance, and testing functions required to ensure compliance with the conditions of this permit.

 

Pursuant to Part II.B.(d) of the Permit, maintenance of all waste collection, control, treatment, and disposal facilities shall be conducted in a manner that complies with the bypass provisions.

 

During an inspection conducted by IDEM staff on February 13-16, 2018, the following violations were documented:

 

a.             One clarifier had solids overflowing the weir. Another clarifier had been removed from service, as part of an earlier construction project. A portion of the chlorine contact tank was frozen and solids had accumulated in the tank.

b.             In December 2016, the settleability testing registered greater than 95% for the entire month. Respondent took no operational response actions to correct the high readings on the settleability testing.

c.             Respondent made no effort to document or record operational activities, process monitoring, and process control. Respondent only reported the raw, intermediate, and the final effluent measurement. No maintenance records were kept by Respondent. The sludge wasting and storage tank was empty, and not used for equalization or for storage of excess sludge and/or solids.

d.             During wet weather, infiltration and inflow (I&I) contribute to hydraulic loading to the plant. The plant is operating at an annual average of 91% of design capacity and over 100% capacity during the spring months.

e.             The trash removal system was frozen and trash and debris at the wet well were overflowing the bar screen.

f.              An adequate alarm system was not present to alert operators of equipment failure during hours when an attendant is not on-site.

 

The operational, maintenance, and sludge disposal issues are in violation of Part II.B.1(a) through (d) of the Permit and 327 IAC 5-2-8(9).

 

10.         Pursuant to Part I.A.2 of the Permit and 327 IAC 2-1-6, all surface water at all times and at all places, including waters in the mixing zone, shall meet the minimum conditions of being free from substances, materials, floating debris, oil, scum or other pollutants 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 amounts sufficient to be acutely toxic to, or to otherwise severely injure or kill aquatic life, other animals, plants, or humans;

(E)      Are in concentrations or combinations that will cause or contribute to the growth of aquatic plants or algae to such a degree as to create a nuisance, be unsightly, or otherwise impair the designated uses.

 

During an inspection conducted at the WWTP during the period February 13-16, 2018, IDEM documented evidence of sludge and solids in the receiving stream. The effluent from the WWTP showed evidence of sludge and solids. On February 15, 2018, the receiving stream showed signs of accumulated solids discharged from the clarifier. Additionally, scum and solids were observed in the final effluent at the discharge point, in violation of Part I.A.2 of the Permit and 327 IAC 2-1-6.

 

11.         Pursuant to Part II.C.3 of the Permit, 327 IAC 5-2-8(10) and 327 IAC 5-1-3, the permittee shall orally report to the Commissioner information on the following incidents within 24 hours from the time permittee becomes aware of such occurrence. If the incident meets the emergency criteria of item b (Part II.C.3.b) or 327 IAC 2-6.1, then the report shall be made as soon as possible, but within two (2) hours of discovery. However, under 327 IAC 2-6.1-3(1), when the constituents of the discharge are regulated by this permit, and death or acute injury or illness to animals or humans does not occur, the reporting requirements of 327 IAC 2-6.1 do not apply.

a.             Any unanticipated bypass which exceeds any effluent limitation in the permit;

b.             Any emergency incident which 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 incident by calling 317/233-7745 (888/233-7745 toll free in Indiana). This number should only be called when reporting these emergency events;

c.             Any upset (as defined in Part II.B.3 above) that exceeds any technology-based effluent limitations in the permit;

d.             Any release, including basement backups, from the sanitary sewer system (including satellite sewer systems operated or maintained by the permittee) not specifically authorized by this permit. Reporting of known releases from private laterals not caused by a problem in the sewer system owned or operated by the permittee is not required under Part II.C.3, however, documentation of such events must be maintained by the permittee and available for review by IDEM staff; or

e.        Any discharge from any outfall from which discharge is explicitly prohibited by this permit as well as any discharge from any other outfall or point not listed in this permit.

 

During an inspection conducted at the WWTP during the period February 13-16, 2018, IDEM documented that Respondent failed to report the overflow and loss of solids to the receiving stream. Respondent failed to report the recent plant noncompliance that occurred in January 2018, when the clarifier was surcharging sludge over the weirs and through the chlorine contact tank. The incidents were required to be reported within 24-hours and are in violation of Part II.C.3 of the Permit, 327 IAC 5-2-8(10), and 327 IAC 5-1-3.

 

12.         Pursuant to Part I.B.6 of the Permit, for each measurement or sample taken, the permittee shall record and maintain records of all monitoring information on activities under this permit.

 

As determined from the inspection on February 13-16, 2018, Respondent failed to properly document the exact place, date, and time of sampling or measurement; the name of the person performing the sampling or measurement, the dates and times the analyses were performed, the person who performed the analyses, the analytical techniques or methods used, and the results of all required analyses and measurements. The failure to record and maintain records of all monitoring information under the Permit is in violation of Part I.B.6 of the Permit.

 

13.         Pursuant to Part I.B.8 of the Permit, all records and information resulting from the monitoring activities required by the permit, including all records of analyses performed and calibration and maintenance of instrumentation and recording from continuous monitoring instrumentation, shall be retained for a minimum of three (3) years. In cases where the original records are kept at another location, a copy of all such records shall be kept at the permitted facility.

 

During the inspection on February 13-16, 2018, the evaluation of the record keeping was rated as poor. Respondent failed to keep proper records and failed to accurately report violations. Records and reports were not readily available for review by the inspector. The failure to keep records is in violation of Part I.B.8 of the Permit.

 

Respondent failed to properly report violations that occurred during the months of April and May 2017. The failure to properly report violations is in violation of Part I.B.8 of the Permit.

 

14.         On March 6, 2018, IDEM sent an Inspection Summary/Enforcement Referral Letter to Respondent outlining violations at the WWTP. On March 21, 2018, a Sewer Ban Early Warning Letter was sent to the Respondent requiring a response with an adequate plan to address the hydraulic overloading issues with Respondent’s WWTP. To date, IDEM has not received a response to the above noted violation and noncompliance letters, and the violations continue at the WWTP.

 

15.         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.             Respondents shall comply with statute and permit conditions.

 

3.             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 and Carbonaceous Biological Oxygen Demand (CBOD);

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; and

D.            Comply with reporting requirements of the permit.

 

The CP shall include an implementation and completion schedule, including specific milestone dates.

 

4.             Respondent shall, after completion of the work required pursuant to the approved CP from Paragraph 3 above, demonstrate six (6) consecutive months of compliance (Compliance Demonstration) with the terms and conditions of the Permit, specifically including compliance with effluent limitations, reporting requirements, and operation and maintenance. During the Compliance Demonstration, Respondent shall be subject to stipulated penalties, as specified below, for violations of the terms and conditions of the Permit.

 

In the event that violation(s) occur during the Compliance Demonstration, within 60 days of the violation, Respondent shall 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 terms and conditions of the Permit. The Additional Action Plan, if required, shall include an implementation and completion schedule, including specific milestone dates.

 

5.             The plans required by Paragraphs 3 and 4 above 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.

 

6.             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 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(s), will subject Respondent to stipulated penalties as described below. Following completion of the actions included in the Additional Action Plan, the 6-month Compliance Demonstration, as specified in Paragraph 4 above, will re-start, and Respondent shall be subject to stipulated penalties, as specified below, for violations of the terms and conditions of the Permit during this time period. Failure to achieve compliance at the conclusion of work under an Additional Action Plan may subject Respondent to additional enforcement action.

 

7.             Within 10 days of the completion of each required milestone included in the CP or Additional Action Plan, Respondent shall submit to IDEM a written progress report or notification of completion for each milestone.

 

8.             Beginning on the Effective Date and continuing until the successful completion of implementation of the approved CP as required by Paragraph 3 above, Respondent shall, at all times, operate its existing wastewater treatment plant as efficiently and effectively as possible.

 

9.             All submittals required by this Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall be sent to:

 

Patrick Colcord, Enforcement Case Manager

Office of Water Quality – IGCN 1255

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

10.         Respondent is assessed and agrees to pay a civil penalty of Three Thousand

Nine Hundred Twenty Dollars ($3,920). 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.”

 

11.         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, 5

Failure to submit or modify the CP within the required time period.

$500 per week late, or part thereof.

4, 6

For violations of terms and conditions of the Permit during the Compliance Demonstration.

$500 per violation

4, 6

Failure to submit or modify the Additional Action Plan, if required, within the given time period.

$250 per week late, or part thereof.

6

Failure to implement or meet any milestone date set forth in the approved CP or Additional Action Plan.

$500 per week late, or part thereof.

7

Failure to submit to IDEM a written report of progress or completion for each milestone date included in the CP or Additional Action Plan within 10 days of completion of the requirements of each milestone.

$250 per violation

8

Failure to operate the WWTP as efficiently and effectively as possible.

$250 per violation.

 

12.         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.

 

13.         Civil and stipulated penalties are payable by check to the “Environmental Management Special Fund.” Checks shall include the Case Number 2018-25293-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

 

14.         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.

 

15.         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.

 

16.         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.

 

17.         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.

 

18.         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.

 

19.         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.

 

20.         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.

 

21.         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.

 

22.         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.

 

TECHNICAL RECOMMENDATION:

RESPONDENT:

Department of Environmental Management

Town of Kingsford Heights

 

By:__________________________

By:________________________

Samantha K. Groce, Chief

 

Water Enforcement Section

 

Surface Water, Operations &

Printed:_____________________

Enforcement Branch

 

Office of Water Quality

Title:_______________________

 

 

Date:________________________

Date:_______________________

 

 

COUNSEL FOR RESPONDENT:

 

 

 

By:________________________

 

 

 

Date:______________________

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS ___________ DAY OF ________________, 20___.

 

 

For The Commissioner:

 

 

Signed on January 18, 2019

 

Martha Clark Mettler

 

Assistant Commissioner

 

Office of Water Quality