STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT OF
) SS: ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION )
COMMISSIONER OF THE DEPARTMENT )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
) CAUSE NO. 2001-10245-W
v. )
)
CITY OF MARTINSVILLE )
)
Respondent. )
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.
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. The Respondent, City of Martinsville ("Respondent"), owns and operates a Class III, 2.2 MGD contact stabilization wastewater treatment plant. The facility is authorized by NPDES Permit No. IN 0020303 ("Permit") to discharge to receiving waters named the West Fork of the White River in accordance with stated effluent limitations, monitoring requirements, and other conditions. The facility is located in Morgan County, Indiana.
3. The monitoring requirements for the existing Permit include: flow; carbonaceous biochemical oxygen demand, five day (cBOD5); total suspended solids (TSS); Total Residual Chlorine (TRC); E. coli; and pH. The Permit became effective September 1, 1998 and expires July 31, 2003.
4. IDEM has jurisdiction over the parties and subject matter of this action.
5. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation via Certified Mail to:
The Honorable Shannon Buskirk, Mayor
City of Martinsville
City Hall
59 South Jefferson Street
P.O. Box 1415
Martinsville, IN 46151
6. Pursuant to 327 IAC 5-2-8(1), the NPDES permit requires the Respondent to comply with all terms and conditions of its NPDES permit; any non-compliance constitutes a violation of the Clean Water Act (CWA) and the Environmental Management Act (EMA) and is grounds for enforcement action.
7. The Respondent's facility violated NPDES permit monthly discharge limitations for: carbonaceous Biochemical Oxygen Demand, five day (cBOD5) in the months of November, 1999, May, and September, 2000; Total Chlorine Residual (TRC) in the month of September, 1999; E. coli in the month of August, 1999. Respondent has been in Significant Noncompliance (SNC) status for Total Suspended Solids (TSS) in the months of September through December, 1999, and June through September, 2000. The failure to meet NPDES permit discharge limitations is in violation of the permit and 327 IAC 5-2-8(1).
8. The NPDES permit, Part I.E., Chronic Biomonitoring Program Requirements, indicates the Respondent must report Whole Effluent Toxicity Test (WETT) results to IDEM. The WETT tests were required to be initiated within 90 days of the effective date of the NPDES permit. The testing was required to be conducted monthly for a period of three consecutive months. The results of the testing were required to be submitted to IDEM no later than February 1, 2000, eighteen months following the effective date of the permit. No test results have been submitted to IDEM, in violation of the NPDES permit.
9. Pursuant to 327 IAC 5-2-8(8), the NPDES permit requires Respondent to, at all times, maintain in good working order and efficiently operate all facilities and systems (and related appurtenances) for collection and treatment which are necessary for achieving compliance with the terms and conditions of the permit. The NPDES permit, under Part II.A.2. Duty to Mitigate requires that all reasonable steps be taken, including accelerated or additional monitoring as necessary to determine the nature and impact of the noncomplying discharge. Respondent failed to maintain the collection and treatment systems in good working order and failed to take all reasonable steps to minimize or correct any adverse impact on the environment resulting from noncompliance with the permit in violation of the NPDES permit. The Respondent has documented a briefly described chronology of operational activity in response to upset conditions believed to be caused by an industrial discharger. A December 15, 2000 IDEM inspection report indicates improved operation over the previous November, 2000 inspection date, however only marginal pretreatment evaluation is achieved and major treatment plant renovations are observed to be needed.
10. Pursuant to 327 IAC 5-13-1(d)(1)(2)(A) (now 327 IAC 5-19-7(2)), a POTW not required to develop a POTW pretreatment program shall nonetheless develop, adopt, and enforce a sewer use ordinance (SUO) which implements the standards for prohibited discharges in accordance with 327 IAC 5-12-2 (now 327 IAC 5-18-2). Respondent failed to develop, adopt, and/or enforce a SUO which implements standards for prohibited discharges in accordance with 327 IAC 5-12-2, in violation of 327 IAC 5-13-1(d)(1)(2)(A).
11. Pursuant to 52 FR 403.5(c)(1), all POTWs shall, in cases where pollutants contributed by an Industrial User result in Interference or Pass Through, and such violation is likely to recur, develop and enforce specific effluent limits for Industrial User(s), and all other users, as appropriate, which, together with appropriate changes in the POTW Treatment Plant's facilities or operation, are necessary to ensure renewed and continued compliance with the POTW's NPDES permit or sludge use or disposal practices. Respondent failed to develop and enforce specific effluent limits for Industrial User(s), and all other users, as appropriate, which are necessary to ensure renewed and continued compliance with the POTW's NPDES permit or sludge use or disposal practices, in violation of 52 FR 403 5(c)(1).
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 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. The Respondent shall submit to IDEM for its approval a Compliance Plan (CP) within thirty (30) days of the Effective Date of this Agreed Order, which addresses the deficiencies and violations noted herein. This plan shall include but not be limited to:
e. Interim Measures to be taken to operate the existing treatment plant and sewer collection system as efficiently as possible until any new additions and/or rehabilitations are completed.
MILESTONE DEADLINE
Start Construction April 1, 2002
End Construction October 1, 2002
Upgraded/Corrected Wastewater
Treatment System in Full Operation November 1, 2002
Full Compliance with NPDES permit December 1, 2002
3. The CP is subject to the approval of IDEM. If the plan is deemed inadequate by IDEM, a revised CP shall be submitted within fifteen (15) days of receipt of notice from IDEM of the inadequacies thereof. If after the submission of the revised document(s) IDEM still finds the document(s) are inadequate, then IDEM may require further modification of the CP as necessary to meet IDEM's requirements. If further modification does not meet IDEM's approval, IDEM will suggest appropriate modification to be undertaken by Respondent within a specified time frame. If such modification is not timely undertaken or an alternative plan timely submitted by Respondent is not approved by IDEM, the Respondent will be liable for stipulated penalties. Respondent, upon written notification by IDEM, shall immediately
implement the approved plan, including the dates for completion of the schedule. The approved plan shall be incorporated into the Agreed Order and shall be deemed an enforceable part thereof.
4. All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to :
Dave Knox, case manager
Water Enforcement Section
Office of Enforcement
Indiana Department of Environmental Management
P.O. Box 6015
Indianapolis, Indiana 46206-6015
5. Respondent is assessed a Civil Penalty of $7,125. A portion of said penalty amount, totaling $1,425 shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the Effective Date. In lieu of payment of the remaining portion of the Civil Penalty totaling $5,700, the Respondent shall perform a Supplemental Environmental Project (SEP).
6. The Respondent has elected to perform a SEP which consists of implementation of a recycling program for all residents of the city. First, the Respondent will spend approximately $1,000 to publicize the new program and provide promotional/educational materials to the schools and other interested groups. Secondly, the Respondent will spend approximately $5,000 for heavy, recyclable appliances and metals routed pick-ups on at least six scheduled dates during the program's first year. Thirdly, the Respondent will pay the additional transfer station management fees associated with providing the recycling program for the first year, at an estimated cost of $12,000. The total cost of the SEP is estimated at $18,000 for the first year. Total anticipated revenues from the sale of recyclables is expected to be $3,000 during the first year of the recycling program. The total net value of the SEP for purposes of civil penalty off-set is then $15,000. An off-set ratio of 2:1 will be applied to the civil penalty for monies spent on the SEP, as described above, up to the maximum $5,700 remaining portion of the Civil Penalty that may be off-set.
7. Within thirty days of completing the SEP, the Respondent shall submit written notice and documentation to IDEM which substantiates all actions taken and costs incurred with respect to the SEP. If the Respondent does not spend the full amount for the SEP within the specified time period, subject to any extension for cause due to force majeure, the Respondent agrees to pay the remaining amount of the Civil Penalty, offset by the balance of the funds not expended for the SEP at a 2 to 1 ratio against the Civil Penalty, plus interest at the rate established by IC § 24-4.6-1-101, to the Environmental Management Special Fund. Payment of the remaining Civil Penalty shall be submitted within fifteen (15) days from receipt of a notice to pay from the IDEM. Interest on the remaining Civil Penalty shall be paid from the effective date of this Agreed Order.
8. The Respondent shall have twelve (12) months from the effective date of this Agreed Order to complete the SEP. Within thirty (30) days after completion of the SEP, Respondent shall submit itemized documentation of costs incurred in performing the SEP to IDEM. In the event the SEP cost more than the amount estimated in Paragraph 6, the Respondent assumes responsibility for all additional costs without any further offset of the Civil Penalty as cited above in Paragraph 5. In the event the SEP is not completed within the twelve month period, Respondent shall receive no offset for the SEP, and the balance of the amount that was offset for the SEP shall become immediately due and payable.
9. In the event the following terms and conditions are violated, the Complainant may assess and the Respondent shall pay a stipulated penalty in the following amounts:
Violation Penalty
Paragraphs 2, 3. $250 per week any reports are late or milestone dates are not met, per each specific occurrence.
10. 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 assessment of the stipulated penalty 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.
11. Civil and stipulated penalties are payable by check to the Environmental Management Special Fund. Checks shall include the Cause Number of this action and shall be mailed to:
Cashier
IDEM
100 N. Senate Avenue
P.O. Box 7060
Indianapolis, Indiana 46207-7060.
12. In the event that the civil penalty required by paragraph 5 is not paid within thirty (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.
13. This Agreed Order shall apply to and be binding upon the Respondent, its officers, directors, principals, agents, successors, subsidiaries, and assigns. The 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.
14. 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 applicable NPDES Permit or with any other applicable federal or state law or regulation.
15. 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, its NPDES Permit, or state law.
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 the Agreed Order did not contain the invalid terms.
17. 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 by contract require that all contractors, firms, and other persons acting for it comply with the terms of this Agreed Order.
18. This Agreed Order shall remain in effect until Respondent has complied with all terms and conditions of this Agreed Order.
TECHNICAL RECOMMENDATION: RESPONDENT:
Department of Environmental Management
By: _________________________ By: _________________________
Mark Stanifer, Section Chief The Honorable Shannon Buskirk,
Office of Enforcement Mayor of Martinsville
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 ____________________, 2001.
FOR THE COMMISSIONER:
Signed 9/11/01
Felicia A. Robinson
Assistant Commissioner of Enforcement