STATE OF INDIANA

COUNTY OF MARION

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SS:

BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v.

Town of colfax,

Respondent.

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Case No. 2019-26618-W

 

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.          Town of Colfax (Respondent), owns and operates the wastewater treatment plant (WWTP), located at 700 Harvey Street, Colfax, Clinton County, Indiana (the Site).

 

3.          Respondent is authorized by its National Pollutant Discharge Elimination System (NPDES) Permit Number IN0020443 (Permit) to discharge wastewater treated in accordance with the terms and conditions of the Permit from its WWTP into receiving waters of the State, which is Withe Creek via Outfall 001.

 

4.          The collection system is comprised of 100% separate sanitary sewers by design with no overflow or bypass points. Overflow or release of sanitary wastewater from the WWTP or collection system that is not authorized by the Permit is expressly prohibited.

 

5.          IDEM has jurisdiction over the parties and the subject matter of this action pursuant to IC 13-30-3.

 

6.          Pursuant to IC 13-30-3-3, on February 4, 2020, IDEM issued a Notice of Violation via Certified Mail to:

 

Bob Stambaugh, Council President

Town of Colfax

P. O. Box 326

Colfax, IN  46035

 

7.          During an investigation conducted by IDEM’s representatives, violations were found, as described below.

 

8.          Pursuant to 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.

 

9.          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 period of January 1, 2016 through November 1, 2019 revealed violations of effluent limitations contained in Part I.A.1 of the Permit for total suspended solids (TSS), Ammonia (as nitrogen), total Chlorine residual (Chlorine), and Escherichia coli (E. Coli) as follows:

 

A.         The weekly maximum average concentration limitation for TSS was exceeded during June 2019.

B.         The weekly maximum average loading (lbs/day) limitation for Ammonia was exceeded during April, May, July and November, 2017, February and March 2018, and January, February, April, May and June 2019.

C.         The weekly maximum average concentration (mg/l) limitation for Ammonia was exceeded during May 2019.

D.         The monthly average loading (lbs/day) limitation for Ammonia was exceeded during April, May, July and November, 2017, February 2018, and February, April, May and June 2019.

E.         The daily minimum concentration limitation for Chlorine was exceeded during May 2017.

F.         The daily maximum concentration limitation for Chlorine was exceeded during April 2018.

G.        The daily maximum total coliform (forming units/100ml) concentration limitation for E. Coli was exceeded during April, May, July and October 2017, April 2018, and April and May 2019.

 

Respondent failed to comply with the effluent limitations from Outfall 001 contained in the Permit, in violation of Part I.A.1 of the Permit and 327 IAC 5-2-8(1).

 

10.      Part II.B.1 of the Permit, in accordance with 327 IAC 5-2-8(9), the permittee shall at all times maintain in good working order and efficiently operator all facilities and systems (and related appurtenances) for collection and treatment that are:

 

(1)       Installed or used by the permittee; and

(2)       Necessary for achieving compliance with the terms and conditions of the Permit.

 

Part II.B.1.f of the Permit requires that there is to be an ongoing preventative maintenance program for the collection system.

 

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.

 

During the inspection on April 24, 2017, and in subsequent record reviews, IDEM’s representatives discovered that the WWTP is operating at 150% of the plant’s design capacity. The WWTP is hydraulically overloaded due to inflow and infiltration (I&I) in the collection system. Respondent failed to have an ongoing preventative maintenance program for the collection system that would prevent sanitary sewer overflows (SSOs), I&I, and hydraulic overloading at the WWTP, in violation of Part II.B.1.f of the Permit and IC 13-30-3-1.

 

Also during the inspection conducted on April 24, 2019, IDEM’s representative observed and documented that Respondent failed to have an adequate alarm system necessary to alert WWTP operators of equipment failure during times when no one is at the Site. Specifically, the WWTP has a camera system to alert employees of a power outage, but currently no remote (SCADA) system is in place to alert Respondent and its operators of equipment failure or overflows due to high water levels in the WWTP at all times, in violation of Part II.B.1 of the Permit and 327 IAC 5-2-8(9).

 

11.      Pursuant to Part II.B.2.b of the Permit and 327 IAC 5-2-8(12)(D), bypassing is prohibited, and the Commissioner may take enforcement action against a permittee for bypass unless certain conditions are met.

 

During the inspection conducted on April 24, 2017, IDEM’s representative observed and documented that Respondent failed to provide continuous disinfection during the required disinfection season from April 1 through October 1, annually. Specifically, Respondent failed to prevent unpermitted bypassing of treatment at the Chlorine contact tank when the Chlorine disinfection system was not in operation, and the WWTP continued to discharge partially treated wastewater, in violation of Part II.B.2.b of the Permit and 327 IAC 5-2-8(12)(D).

 

Subsequent to the issuance of the Notice of Violation, IDEM was made aware that during the time of the inspection, Respondent was performing maintenance on the Chlorine disinfection system, which was the reason for the unpermitted bypassing of treatment. Respondent has since changed its maintenance process, which allows for the wastewater to return to the headworks when the chlorine disinfection system is taken out of service for maintenance.

 

12.      Pursuant to Part II.B.2.d.(2) of the Permit, the permittee shall orally report or fax a report of an unanticipated bypass within 24 hours of becoming aware of the bypass event. The permittee must also provide a written report within five (5) days of the time the permittee becomes aware of the bypass event. The written report must contain a description of the noncompliance (i.e. the bypass) and its cause; the period of noncompliance, including exact dates and times; if the cause of noncompliance has not been corrected, the anticipated time it is expected to continue; and steps taken or planned to reduce, eliminate and prevent recurrence of the bypass event. If a complete fax or email submittal is sent within 24 hours of the time that the permittee became aware of the unanticipated bypass event, then that report will satisfy both the oral and written reporting requirements.

 

During the inspection conducted on April 24, 2019, IDEM’s representative documented that Respondent’s certified operator stated that there have been numerous overflows from three (3) points in the WWTP, which include the influent grinder structure and aeration basins. These prohibited overflows would be considered bypass events, which were not reported to IDEM, in violation of Part II.B.2.d.(2).

 

13.      Pursuant to Part II.B.4.a of the Permit, collected screenings, slurries, and other such pollutants shall be disposed of in accordance with provisions set forth in 329 IAC 10, 327 IAC 6.0 or another method approved by the Commissioner.

 

Pursuant to Part II.B.4.b of the Permit, the permittee shall comply with existing federal regulations governing solids disposal, and with applicable provisions of 40 Code of Federal Regulations (CFR) Part 503, the federal sludge disposal regulation standards.

 

During the inspection conducted on April 24, 2017, IDEM’s representative observed and documented excessive dried sludge solids outside of the aeration tank on the ground. In addition, dried sludge solids were present on the concrete ground the WWTP, and on the ground outside the WWTP. Respondent failed to comply with sludge handling requirements, in violation of Part II.B.4.a of the Permit, 329 IAC 10, 327 IAC 6.0, and 40 CFR Part 503.

 

14.      Pursuant to Part II.B.5.a of the Permit, in accordance with 327 IAC 5-2-10 and 327 IAC 5-2-8(14), in order to maintain compliance with the effluent limitations and prohibitions of the Permit, the permittee shall provide an alternative power source sufficient to operate facilities utilized by the permittee to maintain compliance with the effluent limitations and conditions of the Permit.

 

During the inspection conducted on April 24, 2019, IDEM’s representative observed and documented the lack of an alternative power source. At the time of the inspection, there was only one portable generator, which is shared between the WWTP and the drinking water treatment plant (DWTP). Therefore, in the event of a power outage at both the WWTP and the DWTP, Respondent is incapable of supplying adequate alternative power, in violation of Part II.B.5.a of the Permit, 327 IAC 5-2-10, and 327 IAC 5-2-8(14).

 

15.      Pursuant to Part II.B.6 of the Permit, any overflow or release of sanitary wastewater from the WWTP or collection system that results in a discharge to waters of the State, and is not specifically authorized by the Permit, is expressly prohibited.

 

During the inspections conducted on April 24, 2017, July 26, 2018 and April 24, 2019, and in a review of Respondent’s Bypass/Overflow Incident Reports for the period of July 1, 2017 to October 1, 2019, it was discovered that Respondent reported seven (7) SSOs. All of the SSOs were reported to have been caused by precipitation events, and approximately 3,531,000 gallons of untreated wastewater was released from Respondent’s collection system into the environment during the seven (7) SSOs, in violation of Part II.B.6 of the Permit.

 

16.      On May 4, 2017, August 1, 2018 and May 2, 2019, IDEM issued Inspection Summary/Noncompliance Letters to Respondent outlining violations in the WWTP and in the collection system. The letters required a response detailing actions Respondent was required to take to correct the violations. IDEM received responses to the letters explaining compliance actions Respondent took or would take to address the violations. However, the violations noted above continue at the WWTP and in the collection system, and Respondent has not taken steps to comply with the Permit.

 

17.      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 15 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.          Immediately, upon the Effective Date, Respondent shall report overflows or a release of sanitary wastewater to waters of the State, not specifically authorized by the Permit per the reporting requirements in Part II.C.3 of the Permit.

 

4.          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 the Permit, specifically including the actions Respondent will take to:

 

A.         Achieve and maintain compliance with effluent limitations contained in the Permit, specifically TSS, Ammonia, Chlorine, and E. Coli;

B.         Assure proper storage, removal, 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;

D.         Install adequate remote alarm system capable of alerting Respondent and its operators at all times when there is equipment failure, and during high flows to/through WWTP, at splitter box, aeration tank, and sludge drying bed;

E.         Evaluate collection system and implement means to eliminate SSOs and bypasses;

F.         Develop and implement a preventative maintenance program for collection system, which includes methods and milestone dates for locating and eliminating sources of inflow and infiltration (I/I) in the sewer system; and

G.        Comply with reporting requirements of the Permit.

 

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

 

Respondent shall notify IDEM in writing and obtain approval of variations to the approved CP, prior to implementation of any variations.

 

5.          Respondent shall, after completion of the work required pursuant to the approved CP from Order Paragraph 4 above, demonstrate 12-consecutive months of compliance (Compliance Demonstration) with terms and conditions of the Permit.

 

6.          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 NPDES Permit. The AAP, if required, shall include an implementation and completion schedule, including specific milestone dates.

 

7.          The plans required by Order Paragraphs 4 and 6 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 (3) submissions of such plan by Respondent, IDEM may seek civil enforcement of this Order.

 

8.          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 12 month Compliance Demonstration, as specified in Order Paragraph 5 above, will re-start. Failure to achieve compliance at the conclusion of work under an AAP may subject Respondent to additional enforcement action.

 

9.          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 on March 31st, June 30th, September 30th, and December 31st until completion of the CP or AAP.

 

10.      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.

 

11.      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 1255

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

12.      Respondent is assessed and agrees to pay a civil penalty of Two Thousand, Four Hundred Eighty Dollars ($2,480). Said penalty amount shall be paid in six (6) consecutive monthly payments. The first payment in the amount of Four Hundred Five Dollars ($405) shall be due and payable to the “Environmental Management Special Fund” within 30 days of the Effective Date. The remaining amount of Two Thousand, Seventy-Five Dollars ($2,075) shall be due in five (5) consecutive monthly payments of Four Hundred Fifteen Dollars ($415), with the 30th day of each month being the “Due Date.”

 

13.      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 report overflows and releases, as required.

$400 per violation.

4

Failure to submit the CP within the required time period.

$250 per week late, or part thereof.

5

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

$400 per violation

6

Failure to submit the AAP, if required, within the given time period.

$500 per week late, or part thereof.

7

Failure to modify the CP and/or AAP, if required, within the given time period.

$500 per week late, or part thereof.

8

Failure to meet and/or implement any milestone date set forth in the approved CP or AAP.

$500 per week late, or part thereof.

9

Failure to submit to IDEM a written progress report within 10 days of each milestone date OR calendar quarter.

$150 per week late, or part thereof.

10

Failure to operate the WWTP as efficiently and effectively as possible prior to Compliance Demonstration.

$200 per violation.

 

14.      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.

 

15.      Civil and stipulated penalties are payable by check to the “Environmental Management Special Fund.” Checks shall include the Case Number 2019-26618-W of this action and shall be mailed to:

 

Indiana Department of Environmental Management

Accounts Receivable

IGCN, Room N1340

100 N. Senate Avenue

Indianapolis, IN  46204

 

16.      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.

 

17.      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.

 

18.      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.

 

19.      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.

 

20.      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.

 

21.      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.

 

22.      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.

 

23.      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.

 

24.      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.

 

TECHNICAL RECOMMENDATION:

RESPONDENT:

Department of Environmental Management

Town of Colfax

 

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 15, 2020

 

Martha Clark Mettler

 

Assistant Commissioner

 

Office of Water Quality