STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT

) SS: OF ENVIRONMENTAL MANAGEMENT

COUNTY OF MARION )

COMMISSIONER OF THE DEPARTMENT )

OF ENVIRONMENTAL MANAGEMENT, )

)

Complainant, )

)

vs. ) Case No. 2000-10181-W

)

TOWN OF VEVAY, )

)

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.

 

 

FINDINGS OF FACT

1. Complainant is the Commissioner ("Complainant") of the Indiana Department of Environmental Management, a department of the State of Indiana created by IC 13-13-1-1.

2. The Respondent, the Town of Vevay ("Respondent"), owns and operates a publicly owned treatment works (POTW). The facility is authorized by National Pollutant Discharge Elimination System (NPDES) permit No. IN 0020231 ("Permit") to discharge to receiving waters named the Ohio River in accordance with stated effluent limitations, monitoring requirements, and other conditions. The permit became effective on March 1, 1997 and expired December 31, 2001. The terms of the 1997 permit are administratively extended pending renewal. The facility is located in Switzerland County, Indiana ("Site").

 

 

3. The Indiana Department of Environmental Management ("IDEM") has jurisdiction over the parties and the subject matter of this action.

4. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation on August 31, 2001 via Certified Mail to:

Earl Van Winkle

Town Council President

Town of Vevay

210 Ferry Street

P.O. Box 52

Vevay, Indiana 47043

    1. A records review and on-site inspections were conducted by representatives of IDEM. The following violations were in existence or observed at the time of the record review and/or these inspections:
    1. Pursuant to IC 13-18-11-11, all wastewater treatment plants must be under the supervision of an operator whose competency is certified to by the commissioner in a classification corresponding to the classification of the plant to be supervised.

Pursuant to 327 IAC 5-2-8(1) and Part II. A.1 of the Permit, the Town of Vevay is required to comply with all terms and conditions of the Permit. Any permit noncompliance constitutes a violation of the Clean Water Act (CWA) and IC 13 and is grounds for enforcement.

Pursuant to Part II.A.14 of the Permit, the permittee shall have the waste treatment facilities under the direct supervision of an operator certified by the Commissioner as required by IC 13-18-11.

The Town of Vevay owns and operates a Class II wastewater treatment plant, which is required to be under the direct supervision of an operator with corresponding qualifications, i.e., a Class II license. The Town of Vevay has its wastewater treatment plant under the direct supervision of an operator with a Class I license in violation of IC 13-18-11-11, 327 IAC 5-2-8(1), Part II.A.1 of the Permit, and Part II.A.14 of the Permit.
    1. Pursuant to 327 IAC 5-2-8(1) and Part II.A.1 of the permit, the Town of Vevay is required to comply with all terms and conditions of the Permit. Any permit noncompliance constitutes a violation of the Clean Water Act (CWA) and IC 13 and is grounds for enforcement action.

      2. Part I.A.1 of the Permit contains final effluent limitations applicable to the discharge from Outfall 001.

      Discharge Monitoring Reports and Monthly Reports of Operation submitted by the Town of Vevay to IDEM for August 1998 through November 2000 reveal that the Town of Vevay failed to meet effluent limitations contained in Part I.A.1 of the Permit for Total Suspended Solids and Total Residual Chlorine as follows:

      The quantity maximum weekly average effluent limitation for Total Suspended Solids was violated in March 2000.

      The quality daily minimum or maximum effluent limitation for Total Residual Chlorine was violated in December 1998, January, March, April, May, June, August, September, October, November, and December, 2000.

      The Town of Vevay's failure to comply with effluent limitations contained in its Permit is in violation of 327 IAC 5-2-8(1), Part II.A.1 of the Permit, and Part I.A.1 of the Permit.

    2. Pursuant to 327 IAC 5-2-8(1) and Part II.A.1 of the Permit, the Town of Vevay is required to comply with all terms and conditions of the Permit. Any permit noncompliance constitutes a violation of the Clean Water Act (CWA) and IC 13 and is grounds for enforcement action.

      3. Pursuant to 327 IAC 5-2-8(8) and Part II.B.1 of the Permit, all waste collection, control, treatment, and disposal facilities shall, at all times, be maintained in good working order and operated as efficiently as possible and in a manner which will minimize upsets and discharges of excessive pollutants.

      Inspections by IDEM representatives of the Town of Vevay's POTW revealed that the Town of Vevay failed to properly maintain and/or efficiently operate the equipment at its POTW by not evenly splitting the flow at the headworks, not providing an alternative power source, and failing to maintain both pumps at the main lift station in good working order at all times, in violation of 327 IAC 5-2-8(1), Part II.A.1 of the Permit, 327 IAC 5-2-8(8), and Part II.B.1 of the Permit.

    3. Pursuant to 327 IAC 5-2-8(1) and Part II.A.1 of the Permit, the Town of Vevay is required to comply with all terms and conditions of the Permit. Any permit noncompliance constitutes a violation of the Clean Water Act (CWA) and IC 13 and is grounds for enforcement action.

      4. 327 IAC 2-1-6(a)(1) and Part I.A.2 of the Permit require, in part, that the discharge from Outfall 001 be essentially free of floating and settleable solids and free of substances that are in amounts sufficient to be unsightly or deleterious.

      Part II.B.4 of the Permit states, in part, that solids, sludges, or other pollutants removed from or resulting from treatment or control of wastewaters shall be disposed of in a manner such as to prevent any pollutant from such materials from entering waters of the State.

      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 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 which violates rules, standards, or discharge or emission requirements adopted by the appropriate board pursuant under this title.

      Inspections by IDEM representatives of the Town of Vevay's POTW revealed that the Town of Vevay caused or allowed solids and/or sludge generated during the wastewater treatment process to be discharged to waters of the state, via Outfall 001, in violation of 327 IAC 5-2-8(1), Part II.A.1 of the Permit, 327 IAC 2-1-6(a)(1), Part I.A.2 of the Permit, Part II. B.4 of the Permit, IC 13-18-4-5, and 327 IAC 13-30-2-1.

    4. Pursuant to 327 IAC 5-2-8(1) and Part II.A.1 of the Permit, the Town of Vevay is required to comply with all terms and conditions of the Permit. Any permit noncompliance constitutes a violation of the Clean Water Act (CWA) and IC 13 and is grounds for enforcement action.

      5. 327 IAC 5-2-8(3) and Part II.A.2 of the Permit require the permit holder to take all reasonable steps to minimize or correct any adverse impact on the environment resulting from noncompliance with the permit.

      Inspections by IDEM representatives of the Town of Vevay's POTW revealed that the Town of Vevay failed to take the appropriate steps to minimize or correct the adverse impact on the environment resulting from the discharge of sludge into waters of the state, in violation of 327 IAC 5-2-8(1), Part II.A.1 of the Permit, 327 IAC 5-2-8(3), and Part II.A.2 of the Permit.

    5. Pursuant to 327 IAC 5-2-8(11) and Part II.B.2.e of the Permit, the lift station bypass points identified in the Permit are expressly prohibited from discharging, unless the following criteria are met:
    1. Bypass is unavoidable to prevent loss of life, personal injury or severe property damage;
    2. There are no feasible alternatives to bypass, such as the use of auxiliary treatment facilities, retention of untreated wastes, or maintenance during normal periods of equipment down-time; and
    3. The Town of Vevay submits notice of an unanticipated bypass to the Commissioner within twenty-four (24) hours of becoming aware of the bypass. If this information is provided orally, a written report must be provided within five (5) days of such diversion or bypass.

Inspections by IDEM representatives of the Town of Vevay's POTW conducted in 1998, 1999, and 2000 revealed evidence of bypass and/or overflow events. A review of IDEM records revealed that the Town of Vevay failed to report the occurrence of these events in the manner required by the Permit. Additionally, the Town of Vevay failed to demonstrate that the bypasses were unavoidable to prevent loss of life, personal injury or severe property damage and failed to demonstrate that there are no feasible alternatives to the bypasses. Therefore, these discharge events constituted prohibited bypasses, in violation of 327 IAC 5-2-8(11) and Part II.B.2.e of the Permit.
    1. 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 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.
    1. Within 30 days of the Effective Date, the Respondent shall submit a Compliance Plan (CP) which identifies the corrective actions that Respondent will take to address and resolve each of the violations described in paragraph 5 of the Findings of Fact in this Order. The CP shall contain an implementation and completion schedule, specifying milestone dates. The CP is subject to the approval of IDEM. If the plan is deemed inadequate by IDEM, a revised CP shall be submitted within 15 days of receipt of notice from IDEM of the inadequacies thereof. If, after submission of the revised document, IDEM still finds the document to be inadequate, then IDEM will request further modification of the CP as necessary to meet IDEM’s requirements. If the subsequently submitted modification of the CP does not meet IDEM’s approval, IDEM will suggest specific modifications to be made to the CP and require re-submittal by a specific date. If the IDEM-suggested modifications are not incorporated into the CP by the Respondent, or an alternative, adequate plan is not submitted by the Respondent by the specified date, the Respondent will be subject to stipulated penalties as described in Paragraph 6 below.

      2. The approved CP shall be incorporated into the Agreed Order and shall be deemed an enforceable part thereof. The Respondent, upon receipt of written notification from IDEM, shall immediately implement the approved CP and adhere to the schedule therein. Upon completion of each action contained in the approved CP, the Respondent shall submit notification of completion of the action to IDEM. The notification shall include a description of the action completed, and the date it was completed.

    2. Beginning on the date of completion of the CP, the Respondent shall, within nine months of the completion date (the "Performance Period"), demonstrate six consecutive months of compliance ("Compliance Demonstration") with its NPDES Permit.

During the Performance Period, the Respondent shall be subject to stipulated penalties, as specified in Paragraph 6 below, for violations of its NPDES Permit. In the event that Respondent fails to make the Compliance Demonstration, Respondent shall, within 30 days of becoming aware that the Compliance Demonstration cannot be achieved, develop and submit to IDEM, for its approval, a plan ("action plan") which identifies the corrective actions that Respondent will take to achieve and maintain compliance with its NPDES Permit. The action plan, if required, shall include an implementation and completion schedule, including specific milestone dates.

The action plan shall be subject to the approval of IDEM. If the action plan is deemed inadequate by IDEM, a revised action plan shall be submitted within 30 days of receipt of notice from IDEM of the inadequacies thereof. If after submission of the revised documents(s) IDEM still finds that the document(s) are inadequate, then IDEM may require further modification of the action plan as necessary to meet IDEM’s requirements. If further modification does not meet IDEM’s approval, IDEM will suggest specific modifications to be made to the action plan and require re-submittal by a specific date. If the IDEM-suggested modifications are not incorporated into the action plan by the Respondent, or an alternative, adequate plan is not submitted by the Respondent by the specified date, the Respondent will be subject to stipulated penalties as described in Paragraph 6 below.

The approved action plan shall be incorporated into the Agreed Order and shall be deemed an enforceable part thereof. The Respondent, upon receipt of written notification by IDEM, shall immediately implement the approved action plan, and complete the actions contained in the approved action plan and adhere to the schedule therein. Upon completion of each action contained in the approved action plan, the Respondent shall submit notification of completion of the action to IDEM. The notification shall include a description of the action completed, and the date it was completed.

4. All submittals required by this Agreed Order, unless notified otherwise in

writing, shall be sent to:

Christina Sorensen, Enforcement Case Manager

Office of Enforcement

Indiana Department of Environmental Management

100 N. Senate Avenue

P. O. Box 6015

Indianapolis, IN 46206-6015

5. Respondent is assessed a civil penalty of Thirteen Thousand Nine Hundred Dollars ($13,900). Said penalty amount shall be due and payable to the Environmental Management Special Fund within 30 days of the Effective Date of this Agreed Order.

6. In the event the 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 Penalty

Failure to comply with Order paragraph 2 $500 per week for failure to submit CP or any required modifications

$1,000 per week for failure to meet any milestone dates in the CP, once approved

Failure to comply with Order paragraph 3 $1000 per violation of NPDES Permit during Performance Period;

$500 per week for failure to submit action plan or any required modifications;

$1000 per week for failure to meet any milestone dates in the action plan, once approved

7. Stipulated penalties shall be due and payable within 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.

8. Civil and 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

9. In the event that the civil penalty required by Order paragraph 5, is not paid within 30 days of the Effective Date of this Agreed Order, Respondent shall pay interest on the unpaid balance at the rate established by IC 24-4.6-1-101. The interest shall continue to accrue until the civil penalty is paid in full.

10. 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.

11. 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.
    1. 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.
    2. This Agreed Order is not and shall not be interpreted to be a Permit, or a modification of an existing Permit, nor shall it in any way relieve Respondent of its obligation to comply with the requirements of its NPDES Permit or with any other applicable federal or state law or regulation.
    3. 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 Respondent’s NPDES Permit or applicable federal state law or regulation.
    4. This Agreed Order shall remain in effect until Respondent has complied with paragraphs 2 through 9 of this Agreed Order and IDEM issues a close-out letter to the Respondent.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

TECHNICAL RECOMMENDATION: RESPONDENT:

Department of Environmental Management

By: _________________________ By: _________________________

Mark W. Stanifer

Chief, Water Section Printed: ______________________

Office of Enforcement

Title: ________________________

Date: ________________________ Date: ________________________

 

COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:

Department of Environmental Management

By: _________________________ By: ________________________

Hala K. Silvey

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 November 1, 2002

Felicia A. Robinson

Deputy Commissioner

For Legal Affairs