STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT
) SS: OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION )
COMMISSIONER OF THE DEPARTMENT )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
)
v. ) Case No. 2000-10129-W
)
TOWN OF FARMERSBURG, )
)
Respondent. )
)
AGREED ORDER
The Complainant and the 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.
I. FINDINGS OF FACT
1. Complainant is the Commissioner (AComplainant@) of the Indiana Department of Environmental Management, a department of the State of Indiana created by IC 13-13-1-1.
2. Respondent is the Town of Farmersburg ("Respondent"), which owns and operates the Town of Farmersburg Wastewater Treatment Plant (WWTP), located on Rogers Road, Farmersburg, Sullivan County, Indiana. The Town of Farmersburg WWTP discharges wastewater, as authorized by NPDES Permit No. IN 0021148 (the current Permit), to receiving waters named the West Fork of Busseron Creek in accordance with effluent limitations, monitoring requirements, and other conditions set forth in the current Permit. The Respondent's prior NPDES permit (the prior Permit) was issued on March 8, 1993, and was effective from April 1, 1993 until April 1, 1999, when it was renewed and reissued under the current Permit.
3. The Indiana Department of Environmental Management (AIDEM@) has jurisdiction over the parties and the subject matter of this action.
4. Pursuant to IC 13-30-3-3, on May 23, 2001, IDEM issued a Notice of Violation via
Certified Mail to:
Michael Bledsoe, President
Town Council, Town of Farmersburg
P.O. Box 468
Farmersburg, IN 47850-0468
5. A record review of the Town of Farmersburg WWTP has recently been conducted by representatives of IDEM=s Office of Water Quality. The following violations were in existence or observed at the time of the record review:
A. Pursuant to IC 13-30-2-1, no person may 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 or into any publicly owned treatment works in any form which causes or would cause pollution that violates rules, standards, or discharge or emission requirements adopted by the appropriate board under this title.
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 sections 1 and 3 of this chapter.
Pursuant to 327 IAC 5-2-2, any discharge of pollutants into waters of the state as a point source discharge, except for exclusions made in 327 IAC 5-2-4, is prohibited unless in conformity with a valid NPDES permit obtained prior to the discharge.
Pursuant to 327 IAC 5-2-8(1), both the prior Permit and the current Permit, under Part II.A.1, require the Respondent to comply with all terms and conditions of the permit. Any permit noncompliance, pursuant to 327 IAC 5-2-8, constitutes a violation of the Clean Water Act (CWA), the Environmental Management Act (EMA) and the permit.
The Town of Farmersburg WWTP is served by 100% separate sanitary sewers by design. Under Part I.A.1 of both the prior Permit and the current Permit, the WWTP was/is authorized to discharge from Outfall 001.
Part II.B.2.g. of the current Permit states that the WWTP has a bypass point Outfall No. 101 located at the WWTP Headworks Bypass to the Chlorine Contact Tank which discharges to the West Fork of Busseron Creek via Outfall 001. Page 16 of the prior Permit contained the provisions that prohibited discharges from the Bypass at the Wastewater Treatment Facility.
Pursuant to 327 IAC 5-2-8(11)(D)(i), under Part II.B.2.b of the current Permit and Part II.A.7 of the prior Permit, bypasses are prohibited. Under the current Permit, the Commissioner may take enforcement action against a permittee for bypass unless:
(1) Bypass was unavoidable to prevent loss of life, personal injury, or severe property damage;
(2) There were no feasible alternatives to the bypass, such as the use of auxiliary treatment facilities, retention of untreated wastes, or maintenance during normal periods of equipment down time. This condition is not satisfied if adequate back-up equipment should have been installed in the exercise of reasonable engineering judgment to prevent a bypass that occurred during normal periods of equipment down time or preventive maintenance; and
(3) The permittee submitted notices as required under Part II.B.2.d; or
(4) The condition under Part II.B.2.f is met. Part II.B.2.f states, "The permittee may allow any bypass to occur that does not cause a violation of the effluent limitations in the permit, but only if it also is for essential maintenance to assure efficient operation. This provision will be strictly construed. These bypasses are not subject to the provisions of Part II.B.2.c and d of this permit."
Under the prior Permit, any diversion from or bypass of facilities necessary to maintain compliance with the terms and conditions of this permit is prohibited, except where unavoidable to prevent loss of life, personal injury, severe property damage, or there is no feasible alternative to the bypass. Under the prior Permit, the permittee shall promptly notify the Commissioner immediately of such occurrences by telephone and in writing within five days of such diversion or bypass.
From June, 1998 through February, 2000, unanticipated bypasses from bypass point Outfall No. 101 at the Farmersburg WWTP or overflows from a lift station of the sewer collection system have been reported to IDEM to have occurred on 9 days during 1998, 21 days during 1999, 4 days during 2000, and 1 day during 2001.
The above noted bypasses and overflows were reported as required by Part II.B.2.d. of the current Permit and Part II.A.7 of the prior Permit. However, the bypasses and overflows did not occur under provisions of Part II.B.2.b(1), (2), or (4) of the current Permit or under provisions of Part II.A.7 of the prior Permit. Therefore, the reported bypasses and overflows were prohibited and in violation of IC 13-30-2-1, IC 13-18-4-5, 327 IAC 5-2-2, Part II.B.2.b of the current Permit, Part II.A.7 of the prior Permit, the CWA, and the EMA.
B. Pursuant to 327 IAC 5-2-8(1), under Part I.A.1. of both the current Permit and the prior Permit, the Respondent is required to limit and monitor the discharge for dissolved oxygen (D.O.), Total Suspended Solids (TSS), Ammonia Nitrogen, Total Residual Chlorine, and Carbonaceous BOD (CBOD5) as specified in the permits.
DMRs and MROs that have been submitted for the Farmersburg WWTP indicate that the Respondent exceeded the allowable discharge for one or more of the permit limits established for the facility in the permits for the above noted parameters as follows:
a) For D.O. during October of 1998, March, May, June, July, August, September, and October of 1999, and October of 2000.
b) For TSS during June, July, August, October, November, and December of 1998, January, February, March, April, May, and June of 1999, January, February, March, June, July, September, and October of 2000, and January of 2001.
c) For Ammonia Nitrogen during July, August, and November of 1998, January, April, May, and June of 1999, and June and July of 2000.
d) For Total Residual Chlorine (contact tank) during June of 1998, and May and October of 2000.
e) For Total Residual Chlorine (final) during September and October of 2000.
f) For CBOD5 during June, July, August, October, and November of 1998, January, February, March, April, and May of 1999, June, July, and September of 2000, and January of 2001.
The Respondent's exceedences of the allowable discharge of pollutants pursuant to the limits in the Permits established for the facility in the Permits constitutes a violation of the CWA, the EMA, and the Permits.
C. 327 IAC 5-2-8(8), Part II.B.1.a of the current Permit and Part II.A.5 of the prior Permit require that all waste collection, control, treatment, and disposal facilities, at all times, shall be operated as efficiently as possible and in a manner which will minimize upsets and discharges of excessive pollutants.
Both the current Permit and prior Permit indicate that the design capacity of the Farmersburg WWTP is 0.15 million gallons per day (mgd). The record review indicated that the Respondent has reported influent and effluent flows at the WWTP in excess of the design capacity of the WWTP. For example, during June of 2000, the Respondent reported the average daily effluent flow at the WWTP for the month was 0.3639 mgd, and the maximum weekly average daily flow was 0.61 mgd; during September 2000, the average daily flow for the month was 0.2974 mgd, and the maximum weekly average daily flow was 0.465 mgd; and during November 2000, the average daily flow for the month was 0.243 mgd, and the maximum weekly average daily flow was 0.358 mgd. All of these reported flows are significantly higher than the 0.15 mgd design capacity of the WWTP and indicate that excessive inflow and infiltration (I/I) is entering the collection system and resulting in hydraulic overloading of the WWTP.
The Respondent has failed to make the necessary repairs and perform the necessary maintenance to the sewer collection system to prevent the excessive I/I and hydraulic overloading of the collection system and the WWTP. This excessive I/I and hydraulic overloading has caused or contributed to upsets of the WWTP and discharges of excessive pollutants as evidenced by the above noted bypasses of the WWTP, overflows at the lift station(s), and effluent exceedences. Therefore, the Respondent has violated Part II.B.1.a of the current Permit and Part II.A.5 of the prior Permit in that it has not operated all waste collection, control, treatment, and disposal facilities as efficiently as possible and in a manner which will minimize upsets and discharges of excessive pollutants.
6. In 1996, the Respondent completed a sewer rehabilitation and wastewater treatment plant upgrade project that the Respondent expected would bring it into compliance with the permit effective at the time. The sewer rehabilitation project was expected to eliminate approximately 50% of the inflow and infiltration (I/I), and the new .36 million gallon equalization basin was expected to allow adequate treatment during wet weather. In 1997, it became evident that the sewer rehabilitation had not been successful in significantly reducing the I/I, and the equalization basin was not large enough to prevent bypasses during wet weather. During 1997 through 2000, the Respondent continued to identify and remove I/I from the collection system, but the excessive I/I continues to cause excessive flow to the WWTP resulting in upsets of the treatment plant, effluent violations, and bypasses, as outlined in these Findings of Fact.
On September 28, 2001, the Respondent submitted a "Wastewater Non-Compliance Response Plan, Comprehensive Proposal for Corrective Action and Inflow & Infiltration Reduction" (attachment A), which outlines the actions the Respondent intends to take to address its problem related to high influent flows.
On March 12, 2002, the Respondent submitted a Timeline of Activities for the Respondent to complete the improvements in order to get the Respondent's facility into compliance.
7. In recognition of the settlement reached, the 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 approved by the Complainant or her delegate, and has been received by the Respondent. This Agreed Order shall have no force or effect until the Effective Date.
2. At all times, the Respondent shall operate the WWTP as efficiently as possible and in a manner which will minimize upsets and discharges of excessive pollutants as required by the current Permit. The Respondent shall assure that all bypasses and overflows that occur are minimized, monitored, and reported to IDEM as required by the current Permit. As soon as possible, but no later than within six (6) months of the Effective Date, the Respondent shall assure that its influent flow meter is calibrated and accurately measuring the influent flow into the treatment plant.
3. By October 31, 2002, the Respondent will complete its assessment of the condition of the collection system (the sewer assessment).
4. The Respondent will make the simple repairs that are identified during the sewer assessment upon discovery, utilizing its own labor. By October 31, 2002, the Respondent will complete the simple repairs that are identified during the sewer assessment.
5. On February 26, 2002, the Respondent attended a pre-planning meeting pertaining to IDEM State Revolving Fund (SRF) program. By September 30, 2002, the Respondent shall complete a preliminary engineering report (PER) on sewer and/or treatment plant improvements and submit it to IDEM. The PER shall assure that upon completion of the sewer and/or treatment plant improvements the Respondent will be in compliance with the terms and conditions of its current Permit.
6. By March 30, 2003, or within 90 days of approval of the PER, whichever is later, the Respondent shall submit plans and specifications for sewer and/or treatment plant improvements and other information to IDEM as required by the SRF program.
7. By March 30, 2003, the Respondent will send notice of violation to residents within the Town of Farmersburg who are identified as having leaky laterals and/or illegal connections.
8. By August 30, 2003, the Respondent will assure that all residents identified as having leaky laterals and/or illegal connections, replace or correct the leaky laterals and remove the illegal connections.
9. By August 30, 2003, or within 60 days of approval of plans and specifications and other information to IDEM as required by the SRF program, whichever is later, the Respondent shall complete the bid process for the project and enter into a contract to complete the sewer and/or treatment plant improvements.
10. By May 31, 2004, or within nine (9) months of entering into a contract to complete the sewer and/or treatment plant improvements, whichever is later, the Respondent shall complete the sewer and/or treatment plant improvements.
11. Beginning on the first day of the month after the Effective Date of this Order, and every two (2) months thereafter, the Respondent will submit a progress report to IDEM to the address in Paragraph 16. The progress reports will include a description of the Respondent's actions taken during the preceding two (2) months and actions expected to be completed during the following two (2) months, and notification of completion of any of the milestones that the Respondent completed.
12. Upon the completion of the sewer and/or treatment plant improvements as provided by paragraph 10 of this Order, the Respondent shall be under a Performance Period. During the Performance Period, the Respondent shall maintain monthly average TSS, Ammonia Nitrogen, and CBOD5 concentration limits contained in the current Permit, and maintain substantial compliance (as determined by IDEM) with its D.O. and residual chlorine limits. During the Performance Period, the Respondent shall also assure that no unpermitted bypasses occur at the WWTP and that no unpermitted overflows occur in the sewer collection system.
13. The Respondent will be liable for stipulated penalties for failure to comply with the requirements of the Performance Period until six (6) consecutive months of compliance with monthly average TSS, Ammonia Nitrogen, and CBOD5 concentration limits, and substantial compliance with its D.O. and residual chlorine limits are demonstrated, and no unpermitted bypasses or overflows are demonstrated, or one (1) year, whichever comes first, and IDEM issues a letter of completion of the Performance Period. Should the Respondent fail to demonstrate six (6) consecutive months of compliance with monthly average TSS, Ammonia Nitrogen, and CBOD5, substantial compliance with its dissolved oxygen and residual chlorine limits, and no unpermitted bypasses or overflows, within one (1) year, then IDEM, at its discretion, may initiate an additional enforcement action for continuing violations.
14. All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:
Terry Ressler, Case Manager, Water Enforcement Section
Office of Enforcement, IGCN, Rm. 1315
Indiana Department of Environmental Management
100 N. Senate Avenue
P. O. Box 6015
Indianapolis, IN 46206-6015
15. In the event the following terms and conditions of the following paragraphs are violated, the Complainant may assess and the Respondent shall pay a stipulated penalty in the following amount:
Violation
PenaltyFailure to comply with Order paragraphs 2 through 10 $500 per week per violation,
Failure to comply with Order paragraph 11 $500 per violation,
Failure to comply with Order paragraphs 12 & 13 $500 per violation.
16. Stipulated penalties shall be due and payable within thirty (30) days after Respondent receives written notice that the Complainant has determined a stipulated penalty is due. Assessment and payment of stipulated penalties shall not preclude the Complainant from seeking any additional relief against the Respondent for violation of the Agreed Order. In lieu of any of the stipulated penalties given above, the Complainant may seek any other remedies or sanctions available by virtue of Respondent's violation of this Agreed Order or Indiana law, including, but not limited to, civil penalties pursuant to IC 13-30-4.
17. Stipulated penalties are payable by check to the Environmental Management Special Fund. Checks shall include the Case Number of this action and shall be mailed to:
Cashier
IDEM
100 N. Senate Avenue
P. O. Box 7060
Indianapolis, IN 46207-7060
18. This Agreed Order shall apply to and be binding upon the Respondent, its successors and assigns. The Respondent's signatories to this Agreed Order certify that they are fully authorized to execute this document and legally bind the parties they represent. No change in ownership, corporate, or partnership status of the Respondent shall in any way alter its status or responsibilities under this Agreed Order.
19. The Complainant does not, by its approval of this Agreed Order warrant or aver in any manner that the Respondent=s compliance with any aspect of this Agreed Order will result in compliance with the provisions of the Clean Water Act or state law.
20. In the event that any terms of the 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 the Agreed Order did not contain the invalid terms.
21. The 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.
22. This Agreed Order shall remain in effect until the Respondent has complied with paragraphs 2 through 17, and IDEM has issued a close out letter.
TECHNICAL RECOMMENDATION: RESPONDENT:
Department of Environmental Management Town of Farmersburg
By: _________________________ By: _________________________
Mark W. Stanifer Printed: ______________________
Chief, Water Enforcement Section
Office of Enforcement Title: ________________________
Date: ________________________ Date: ________________________
COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:
Department of Environmental Management
By: _________________________ By: ________________________
Office of Legal Counsel
Department of Environmental Management
Date: _______________________ Date: ______________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _____ DAY OF ____________________, 2002.
For the Commissioner:
__Signed 8/6/02________
Felicia A. Robinson
Deputy Commissioner
for Legal Affairs