STATE OF INDIANA	)	SS:	BEFORE THE INDIANA DEPARTMENT OF
	)		ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION	)
COMMISSIONER OF THE DEPARTMENT				)
OF ENVIRONMENTAL MANAGEMENT,				)
				)
Complainant,				)
				)
v.				)	Case No. 2018-25296-W
				)
town of morgantown,				)
				)
Respondent.				)

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 owns and operates the wastewater treatment plant (WWTP), located at Lick Creek Road, which is approximately ¾ mile south of the Town of Morgantown, Morgan County, Indiana (the Site).

3. Respondent is authorized by its National Pollutant Discharge Elimination System (NPDES) Permit Number IN0036820 (the Permit), to discharge wastewater treated in accordance with the terms and conditions of the Permit from its WWTP into receiving waters of the State named Indiana Creek from outfall 001. The collection system is comprised of 100% separate sanitary sewers by design with two (2) sanitary sewer overflow points identified and prohibited in Attachment A of the 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, on October 10, 2018, IDEM issued a Notice of Violation via Certified Mail to:

Michael Day, Town Council President

Town of Morgantown

P. O. Box 416

120 West Washington Street

Morgantown, IN 46160

6. During an investigation conducted by representatives 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 condition 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 327 IAC 5-2-2 and Part II.B.2.g of the Permit, any overflow or release of sanitary wastewater from the wastewater treatment facilities or collection system that results in a discharge to waters of the State, and is not specifically authorized by this permit, is expressly prohibited.

Pursuant to IC 13-30-2-1, a person may not discharge, emit, cause, allow, or threaten to discharge, emit, cause, or allow any contaminant or waste, including any noxious odor either alone or in combination with contaminants from other sources, into 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 IC 13-18-4-5, it is unlawful for any person to throw, run, drain, or otherwise dispose into any of the streams or waters of Indiana; or cause, permit, or suffer to be thrown, run, drained, allowed to seep, or otherwise disposed into any waters; any organic or inorganic matter that causes or contributes to a polluted condition of any waters, as determined by a rule of the board adopted under IC 13-18-4-1 and IC 13-18-4-3.

During inspections on July 11, 2017 and April 18, 2018, IDEM staff observed and documented SSOs consisting of raw sewage and solids flowing from two manholes to a storm drain that flowed to waters of the State, which were not in accordance with the terms and conditions of the Permit, in violation of 327 IAC 5-2-2, Part II.B.2.g of the Permit, IC 13-30-2-1, and IC 13-18-4-5.

Subsequent to issuing the Notice of Violation, on June 5, 2019, IDEM staff conducted an inspection and a records review of the collection system. Respondent reported 23 hydraulic-related overflow and/or bypass events, and 10 maintenance-related overflow and/or bypass events and therefore, remains in violation of 327 IAC 5-2-2, Part II.B.2.g of the Permit, IC 13-30-2-1, and IC 13-18-4-5.

9. Pursuant to 327 IAC 5-2-8(3) and Part II.A.2 of the Permit, the permittee is required to take all reasonable steps to minimize or correct any adverse impact to the environment resulting from noncompliance with the Permit.

During inspections on July 11, 2017 and April 18, 2018, IDEM staff observed and noted that Respondent did not clean up the area surrounding the discharge of wastewater from the collection system, and therefore, failed to take all reasonable steps to minimize or correct the adverse impact to the environment resulting from noncompliance with the Permit, in violation 327 IAC 5-2-8(3) and Part II.A.2 of the Permit.

10. Pursuant to 327 IAC 5-2-8(11)(C), and Part II.B.2.d(2) and Part II.C.3.d of the Permit, the permittee is required to orally report to the Commissioner any unanticipated bypass within 24 hours from the time the permittee becomes aware of the bypass events. The permittee is also required to provide a written report within five (5) days from the time the permittee becomes aware of the bypass event.

Respondent failed to document and report to IDEM the bypass events in the collection system on July 11, 2017 and April 18, 2018, in violation of 327 IAC 5-2-8(11)(C), and Part II.B.2.d(2) and Part II.C.3.d of the Permit.

11. On July 25, 2017, April 23, 2018, and June 13, 2019, IDEM issued Inspection Summary/Noncompliance Letters to Respondent outlining violations in Respondent’s collection system. The letters required a response detailing actions taken to correct the violations. To date, IDEM has not received a response to the above noted violations and noncompliance letters, and IDEM is not aware if Respondent has corrected these violations.

12. 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 10 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 Notice of Violation and prior to the Effective Date.

2. Respondent shall comply with all rules, statues, and permit conditions listed in the findings above at issue.

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 shall take to achieve and maintain compliance with the Permit, specifically including the actions Respondent will take to:

A. Evaluate and implement means to eliminate overflows in the collection system and/or bypasses of treatment; and

B. Develop and implement a preventative maintenance program for the collection system, which includes methods and a schedule for locating and eliminating sources of inflow and infiltration (I/I) in the collection system.

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 Order Paragraph 3 above, demonstrate six (6)-consecutive months of compliance (Compliance Demonstration) with the terms and conditions of the Permit, specifically including compliance with operation, maintenance, and SSO requirements. 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 Order 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 Order 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. 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 March 31^st, June 30^th, September 30^th, and December 31^st until completion of the CP or Additional Action Plan.

8. Beginning on the Effective Date and continuing until the successful completion of implementation of the approved CP, as required by Order Paragraph 3 above, Respondent shall, at all times, operate its existing WWTP and collection system, 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:

Aletha Lenahan, Enforcement Case Manager

Office of Water Quality – IGCN , Room N1255

Indiana Department of Environmental Management

100 N. Senate Avenue

Indianapolis, IN 46204-2251

10. Respondent is assessed and agrees to pay a civil penalty of Two Thousand, Five Hundred Fifty Dollars ($2,550). Said penalty amount shall be due and payable to the Environmental Management Special Fund within 30 days of the Effective Date, the 30^th 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, 5	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 and/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 written quarterly reports of progress and/or completion for each milestone date included in the CP or Additional Action Plan.	$250 per violation
8	Failure to operate the existing WWTP and collection system as efficiently and effectively as possible.	$250 per violation.

12. Stipulated penalties shall be due and payable no later than the 30^th day after Respondent receives written notice that IDEM has determined a stipulated penalty is due, the 30^th 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

2018-25296-W of this action and shall be mailed to:

Office of Legal Counsel

Indiana Department of Environmental Management

IGCN, Room N1307

100 N. 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 Notice of Violation.

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.

REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.

TECHNICAL RECOMMENDATION:	RESPONDENT:
Department of Environmental Management	Town of Morgantown
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 July 31, 2019
	Martha Clark Mettler
	Assistant Commissioner
	Office of Water Quality