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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. Town of pierceton, Respondent. |
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AGREED ORDER
Complainant and
Respondent[s] 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.
Town
of Pierceton (Respondent), owns/operates the Town of Pierceton Wastewater
Treatment Plant (WWTP) located at located at 529 South First Street, Pierceton,
Kosciusko
County, Indiana (the Site).
3.
Respondent
is authorized by National Pollutant Discharge Elimination System (NPDES) Permit
Number IN0020541 (the Permit) to discharge wastewater treated in accordance
with the terms and conditions of the NPDES Permit from the WWTP into Deeds
Creek, via 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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Matt Brubaker,
Town Council President |
Chip Hill,
Town Manager |
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Town of
Pierceton |
Town of
Pierceton |
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P.O. Box 496 |
P.O. Box 496 |
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Pierceton,
Indiana 46562 |
Pierceton,
Indiana 46562 |
6.
During
an investigation conducted by a representative of IDEM, violations were found,
as described below.
7.
327
Indiana Administrative Code (IAC) 5-2-8(1) states permittee shall comply with
all terms and condition 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 327 IAC 2-4-1, every person, firm, or corporation that operates a municipal,
industrial, commercial, or agricultural waste treatment plant control facility
or discharges wastewaters to the waters of the state of Indiana shall submit to
the Commissioner Monthly Reports of Operation (MROs), which shall include flow
measurements and wastewater characteristics.
Pursuant
to 327 IAC 5-2-13, to assure compliance with permit terms and conditions, all
permittees shall monitor, as required in the permit.
Pursuant
to 327 IAC 5-2-15, the permittee shall report to the Commissioner, using
Discharge Monitoring Reports (DMRs). The reports shall be submitted as often as
required by the permit and shall include the results of any monitoring
specified by the permit pursuant to 327 IAC 5-2-13.
Pursuant
to Part I.B.3 of the Permit, the permittee shall submit accurate reports
containing results obtained during the previous monitoring period and shall be
postmarked no later than the 28th day of the month following each
completed monitoring period. These reports shall include, but not limited to,
the MRO and the DMR.
Respondent
failed to submit MROs and DMRs by the 28th day of the month for
Outfall 001-A for the months of April, July, November, December 2016, January,
February, April, June, August, September, October, November, December 2017,
January, March, April, June, July, August, September, and October 2018, in
violation of 327 IAC 2-4-1, 327 IAC 5-2-13, 327 IAC 5-2-15, and Part I.B.3 of
the Permit.
Respondent
has submitted all of the above MROs and DMRs, however they were submitted late.
Respondent
failed to submit MROs and DMRs by the 28th day of the month for
Outfall 001-AQ for the months of March, June, September, and December 2017, in
violation of 327 IAC 2-4-1, 327 IAC 5-2-13, 327 IAC 5-2-15, and Part I.B.3 of
the Permit.
Respondent
has submitted all of the above MROs and DMRs, however they were submitted late.
Respondent
failed to submit quarterly MROs and DMRs for Outfall 001-AQ for the months of March,
June, and September 2018, in violation of 327 IAC 2-4-1, 327 IAC 5-2-13, 327
IAC 5-2-15, and Part I.B.3 of the Permit.
9.
Pursuant
to Part I.F of the Permit, the Whole Effluent Toxicity Testing (WETT)
requirements of the permit set forth the monitoring, implementation, and reporting
requirements to assess the character and toxicity of the final effluent from
the wastewater treatment facility on aquatic life.
Pursuant
to Part I.F.1.d of the Permit, the permittee shall conduct WETT once annually
for the duration of the permit. The results of the toxicity tests are due
within each twelve month period as calculated from the effective date of the
permit.
As noted during the record review, Respondent failed to conduct and
submit the WETT results of the Outfall 001 discharge during the period of March
1, 2017 through February 28, 2018, in violation of Part I.F of the Permit and Part I.F.1.d
of the Permit.
10.
Pursuant to Part I.E.1 of
the Permit, the permittee shall submit a written progress report to the
Compliance Data Section, Office of Water Quality (OWQ) nine (9) months from the
effective date of the permit. The
progress report shall include, among other items, a description of the
method(s) selected for meeting final requirements for copper, cyanide, and
zinc.
Pursuant to Part I.E.2 of the Permit, the permittee shall submit a
written progress report to the Compliance Data Section, OWQ no later than the
eighteen (18) months from the effective date of the permit.
Respondent failed to submit a written progress report for copper, cyanide,
and zinc to the Compliance Data Section, OWQ nine months and eighteen months from
the effective date, March 1, 2017, of the Permit, in violation of Part I.E.1 and
Part I.E.2 of the Permit.
Respondent submitted a written progress report on April 12, 2018, which
will count towards the nine month report requirement per Part I.E.1 of the
Permit. IDEM has not received a report for the eighteen month report
requirement per Part I.E.2 of the Permit.
11.
Pursuant
to Part III.C.11 of the Permit, the permittee shall sample and analyze the Publically
Owned Treatment Works (POTW’s) final sludge during the first and third calendar
quarter or the second and fourth calendar quarter of each year. The permittee
shall report the results on the Non-Delegated Pretreatment Sludge Discharge
Monitoring Report (DMR).
Respondent failed to submit final sludge
monitoring analysis for the first and second quarter of 2018, in violation of
Part III.C.11 of the Permit.
12.
Pursuant to Part III.C.12
of the Permit, the permittee shall submit an annual report to the IDEM
Pretreatment Group by April 1 of the year following each completed monitoring
period.
Respondent failed to submit the annual
report for 2015, 2016, and 2017 in violation of Part III.C.12 of the Permit.
13.
On
February 28, 2017, IDEM sent an Inspection Summary/Noncompliance Letter to
Respondent outlining violations at the WWTP. The letter required a response
detailing actions taken to correct the violations. On April 4, 2017, IDEM sent
a No Response Letter to Respondent stating no response had been received by
Respondent for the February 28, 2017 letter. On June 13, 2017, IDEM sent a
second No Response Letter to Respondent stating no response had been received
by Respondent for the February 28, 2017 letter. IDEM received a response from
Respondent on July 10, 2017 to the letter explaining compliance actions
Respondent took or would take to address the violations. However, the
violations noted above continue at the WWTP.
14.
On August
8, 2018, IDEM sent a Noncompliance Letter to Respondent outlining missing DMRs
and MROs. The letter required a response within 14 days. On August 29, 2018,
IDEM sent another Noncompliance Letter outlining no response had been received
from the August 8, 2018 letter. The letter required a response within 14 days.
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 12 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.
Beginning immediately upon the Effective Date, Respondent shall, demonstrate six (6),
consecutive months of compliance (Compliance Demonstration) with the terms and
conditions of the Permit, specifically including compliance with reporting
requirements.
4.
Respondent
shall, during the Compliance Demonstration period, submit DMRs and MROs to IDEM
no later than the 20th day of the month following the monitoring
period.
5.
Within
30 days of the Effective Date, Respondent shall submit the quarterly MROs and
DMRs listed in Paragraph 8 of the Findings of Facts above.
6.
Beginning
immediately upon the Effective Date, Respondent shall, for the purposes of this
Order, conduct and submit WETT results for the duration of the next required
WETT per the Permit. The next required WETT per the Permit is for March 1, 2018
through February 28, 2019 (Compliance Demonstration 2).
It
is the responsibility of Respondent to continue WETT pursuant to the Permit
after completion of the requirements of this paragraph.
7.
Within 30 days of the Effective Date,
Respondent shall submit a written progress report pursuant to Part I.E of the
Permit. This report will count as the missing report listed in Paragraph 10 of
the Findings of Facts above to
the address in Order Paragraph 10.
It
is the responsibility of Respondent to continue submitting written progress
reports pursuant to the Permit after completion of the requirement of this
paragraph.
8.
Beginning immediately upon the Effective Date,
Respondent agrees to sample, analyze, and submit the results of the POTW’s
final sludge during the first and third quarters of 2019, as required by Part
III.C.11 of the Permit.
9.
Within 30 days of the Effective Date, Respondent
agrees to submit the annual report required pursuant to Part III.C.12 of the Permit.
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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Olivia
Kuss, 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 Three Thousand Three Hundred
Fifty Dollars ($3,350). 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 MROs and DMRs electronically via NetDMR
within the given time period. |
$250
per week late, or part thereof. |
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4 |
Failure
to submit DMRs/MROs by the 20th of every month. |
$250
per week late, or part thereof. |
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5 |
Failure
to submit missing MROs and/or DMRs within the given time period. |
$250
per week late, or part thereof. |
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6 |
Failure to conduct and submit required
WETT. |
$2,000 per violation |
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7 |
Failure
to submit written progress reports as required by the Permit |
$250
per week late, or part thereof. |
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8 |
Failure
to sample, analyze, and submit POTW’s final sludge. |
$500
per violation |
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9 |
Failure
to submit annual report as required by the Permit. |
$250
per week late, or part thereof. |
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 2018-25731-W of this action
and shall be mailed to:
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Office
of Legal Counsel |
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Indiana
Department of Environmental Management |
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IGCN,
Room N1307 |
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100
North Senate Avenue |
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Indianapolis,
IN 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 |
Town of Pierceton |
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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 April 1, 2019 |
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Martha
Clark Mettler |
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Assistant
Commissioner |
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Office
of Water Quality |