Agreed Order

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. 2001-10443-W

)

TOWN OF MARENGO, )

)

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. The Respondent, the Town of Marengo ("Respondent"), owns and operates a publicly owned treatment works (POTW) that includes a wastewater treatment plant (WWTP) located off S.R. 64 just east of Marengo in Crawford County, Indiana. The Respondent is authorized by National Pollutant Discharge Elimination System (NPDES) permit No. IN 0040291 to discharge treated effluent from its WWTP to receiving waters named Whiskey Run Creek in accordance with stated effluent limitations, monitoring requirements, and other conditions.

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, IDEM issued a Notice of Violation on July 19, 2002, via Certified Mail to:

Mr. David Mauck, President
Marengo Town Council
P. O. Box 206
Marengo, IN 46219

5. An investigation, which included a review of IDEM records and inspections of the Respondent's WWTP, was conducted by representatives of IDEM. The investigation revealed the following violations of the Indiana Code, the Indiana Administrative Code, provisions of the Respondent's prior NPDES Permit No. IN0040291, effective between August 1, 1996 and October 31, 2001 (hereinafter referred to as the prior Permit), and provisions of the Respondent's current NPDES Permit No. IN 0040291, effective on November 1, 2001 (hereinafter referred to as the current Permit):

A. Pursuant to 327 IAC 5-2-8(1) and Part II.A.1 of the prior Permit, the Respondent was required to comply with the terms and conditions of the prior Permit.

Pursuant to Part I.A.2 of the prior Permit, the Respondent was required to comply with the effluent limitations applicable to the discharge from its wastewater treatment plant Outfall 001 that were contained in Part I.A.2 of the prior Permit.

Pursuant to 327 IAC 5-2-8(1) and Part II.A.1 of the current Permit, the Respondent is required to comply with the terms and conditions of the current Permit.

Pursuant to Part I.A.1 of the current Permit, the Respondent is required to comply with the effluent limitations applicable to the discharge from its wastewater treatment plant Outfall 001 that are contained in Part I.A.1 of the current Permit.

Discharge Monitoring Reports submitted by the Respondent to IDEM for the period of January 2001 through March 2002 reveal that the Respondent failed to comply with applicable effluent limitations as follows:

The Monthly Average Concentration effluent limitation for Total Suspended Solids was violated in February and March 2001.

The Weekly Average Concentration effluent limitation for Total Suspended Solids was violated in February and March 2001.

The Minimum Dissolved Oxygen effluent limitation was violated in May and November 2001.

The Minimum Residual Chlorine Concentration effluent limitation (applicable at the end of the Chlorine Contact Tank) was violated in May 2001.

The Respondent's failure to comply with effluent limitations prior to November 1, 2001 is in violation of 327 IAC 5-2-8(1), Part II.A.1 of the prior Permit, and Part I.A.2 of the prior Permit. The Respondent's failure to comply with effluent limitations on or after November 1, 2001 is in violation of 327 IAC 5-2-8(1), Part II.A.1 of the current Permit, and Part I.A.1 of the current Permit.

B. Pursuant to 327 IAC 5-2-8(1) and Part II.A.1 of the prior Permit, the Respondent

was required to comply with all terms and conditions of the prior Permit.

Pursuant to 327 IAC 5-2-8(8) and Part II.A.5 of the prior Permit, the Respondent was required to, at all times, maintain in good working order and efficiently operate all waste collection, control, treatment, and disposal facilities.

Pursuant to 327 IAC 5-2-8(1) and Part II.A.1 of the current Permit, the Respondent is required to comply with all terms and conditions of the current Permit.

Pursuant to 327 IAC 5-2-8(8) and Part II.B.1 of the current Permit, the Respondent is required to, at all times, maintain in good working order and efficiently operate all waste collection, control, treatment, and disposal facilities.

During one or more inspections by IDEM representatives of the Respondent's wastewater treatment plant, which were conducted on March 8, April 5, and July 12, 2001, and January 15 and May 9, 2002, the following observations were made, evidencing a failure by the Respondent to properly maintain and/or efficiently operate all waste collection, control, treatment, or disposal facilities:

1. Sludge was stockpiled in a manner that allowed runoff of sludge into the

ditch;

2. Solids were overflowing from the sludge digester onto the ground and into

the ditch;

3. Sludge and supernatant were pumped from the digester to the ditch;

4. The chlorine contact tank was full of sludge;

5. The flow meter sonic head was crusted over with dry sludge;

6. The final effluent was turbid; and

7. The sand filter was not functional and was being bypassed.

The Respondent's failure to properly maintain and/or efficiently operate all waste

collection, control, treatment, or disposal facilities prior to November 1, 2001 is in violation of 327 IAC 5-2-8(1), Part II.A.1 of the prior Permit, 327 IAC 5-2-8(8), and Part II.A.5 of the prior Permit. The Respondent’s failure to properly maintain and/or efficiently operate all waste collection, control, treatment, or disposal facilities on and after November 1, 2001 is in violation of 327 IAC 5-2-8(1), Part II.A.1 of the current Permit, 327 IAC 5-2-8(8), and Part II.B.1 of the current Permit.

C. Pursuant to 327 IAC 5-2-8(1) and Part II.A.1 of the prior Permit, the Respondent was required to comply with all terms and conditions of the prior Permit.

Pursuant to Part I.A.3 of the prior Permit, the discharge from the Respondent's wastewater treatment plant Outfall 001 was required to be essentially free of floating and settleable solids and free of substances that were in amounts sufficient to be unsightly or deleterious.

Pursuant to Part II.A.8 of the prior Permit, collected screenings, slurries, sludges, and other such pollutants were required to be disposed of in accordance with the requirements previously found at 329 IAC 2 and 327 IAC 6, and currently found at 329 IAC 10 and 327 IAC 6.1, or another method approved by the Commissioner.

Pursuant to 327 IAC 5-2-8(1) and Part II.A.1 of the current Permit, the Respondent is required to comply with all terms and conditions of the current Permit.

Pursuant to Part I.A.2. of the current Permit, the discharge from the Respondent's wastewater treatment plant Outfall 001 must be essentially free of floating and settleable solids and free of substances that are in amounts sufficient to be unsightly or deleterious.

Pursuant to Part II.B.4 of the current Permit, collected screenings, slurries, sludges, and other such pollutants must be disposed of in accordance with the requirements previously found at 329 IAC 2 and 327 IAC 6, and currently found at 329 IAC 10 and 327 IAC 6.1, or another method approved by the Commissioner.

Pursuant to 327 IAC 2-1-6(a)(1), all waters at all times and at all places shall meet the minimum conditions of being free from substances, materials, floating debris, oil or scum attributable to municipal, industrial, agricultural, and other land use practices, or other discharges that will settle to form putrescent or otherwise objectionable deposits or that are in amounts sufficient to be unsightly or deleterious.

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 Indiana Code 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 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.

During one or more inspections by IDEM representatives of the Respondent's wastewater treatment plant, which were conducted on March 8, April 5, and July 12, 2001, and January 15 and May 9, 2002, the following observations were made, evidencing that the Respondent caused or allowed solids and/or sludge generated during the wastewater treatment process to be discharged to waters of the state:

1. Sewage sludge deposits were observed in Whiskey Run Creek at and

downstream from the wastewater treatment plant Outfall 001;

2. Sludge was stockpiled in a manner that allowed runoff of sludge into

the storm ditch;

3. Solids were overflowing from the sludge digester onto the ground and

into the storm ditch;

4. Sludge and supernatant were pumped from the digester to the storm

ditch.

The discharge of solids and/or sludge into waters of the state from the Respondent's

WWTP via Outfall 001 prior to November 1, 2001 is in violation of 327 IAC 5-2-8(1), Part II.A.1 of the prior Permit, Part I.A.3 of the prior Permit, Part II.A.8 of the prior Permit, 327 IAC 2-1-6(a)(1), 327 IAC 5-2-2, IC 13-18-4-5, and IC 13-30-2-1.

The discharge of solids and/or sludge into waters of the state from the Respondent's

WWTP digester and/or sludge storage area prior to November 1, 2001 is in violation of 327 IAC 5-2-8(1), Part II.A.1 of the prior Permit, Part II.A.8 of the prior Permit, 327 IAC 2-1-6(a)(1), 327 IAC 5-2-2, IC 13-18-4-5, and IC 13-30-2-1.

The discharge of solids and/or sludge into waters of the state from the Respondent's

WWTP via Outfall 001 on or after November 1, 2001 is in violation of 327 IAC 5-2-8(1), Part II.A.1 of the current Permit, Part I.A.2 of the current Permit, Part II.B.4 of the current Permit, 327 IAC 2-1-6(a)(1), 327 IAC 5-2-2, IC 13-18-4-5, and IC 13-30-2-1.

The discharge of solids and/or sludge into waters of the state from the Respondent's

WWTP digester and/or sludge storage area on or after November 1, 2001 is in violation of 327 IAC 5-2-8(1), Part II.A.1 of the current Permit, Part II.B.4 of the current Permit, 327 IAC 2-1-6(a)(1), 327 IAC 5-2-2, IC 13-18-4-5, and IC 13-30-2-1.

D. Pursuant to 327 IAC 2-1-6(a)(1), all waters at all times and at all places shall meet the minimum conditions of being free from substances, materials, floating debris, oil or scum attributable to municipal, industrial, agricultural, and other land use practices, or other discharges that will settle to form putrescent or otherwise objectionable deposits or that are in amounts sufficient to be unsightly or deleterious.

The Respondent submitted a bypass/overflow report to IDEM on March 8, 2001,

indicating the occurrence of a discharge of approximately 4000 gallons of untreated

sewage from the main lift station which began on March 7, 2001 at 8:30 a.m. On March 8, 2001, an IDEM inspector observed sewage from the main lift station overflow into a street side ditch, which is waters of the state. The discharge of untreated wastewater to waters of the state is in violation of 327 IAC 2-1-6(a)(1), 327 IAC 5-2-2, IC 13-18-4-5, and IC 13-30-2-1.

E. Pursuant to 327 IAC 5-2-8(1) and Part II.A.1 of the prior Permit, the Respondent is required to comply with all terms and conditions of the prior Permit.

Pursuant to Part I.B.1 of the prior Permit, the samples and measurements taken by the Respondent were required to be representative of the volume and nature of the monitored discharge.

The Discharge Monitoring Report for December 2000 submitted by the Respondent

stated that a solids washout occurred. However, monitoring results submitted by the

Respondent were not reflective of the occurrence of a solids washout, indicating a

failure to collect samples representative of the volume and nature of the monitored

discharge, in violation of 327 IAC 5-2-8(1), Part II.A.1 of the prior Permit and Part I.B.1 of the prior Permit.

F. Pursuant to 327 IAC 5-2-8(1) and Part II.A.1 of the current Permit, the Respondent is required to comply with all terms and conditions of the current Permit.

Pursuant to Part I.B.4(b)(4) of the current Permit, 24-hour Composite Samples obtained by the Respondent are to be flow proportioned.

The IDEM inspection on January 15, 2002 revealed that the Respondent failed to

flow proportion samples, in violation of 327 IAC 5-2-8(1), Part II.A.1 of the current Permit and Part I.B 4 of the current Permit.

G. Pursuant to 327 IAC 5-2-8(1) and Part II.A.1 of the current Permit, the Respondent is required to comply with all terms and conditions of the current Permit.

Pursuant to 327 IAC 5-2-14(a) and Part I.B.6 of the current Permit, for each

measurement or sample taken pursuant to the requirements of the permit,

the Respondent must record the following information:

a. The exact place, date, and time of sampling;

b. The person(s) who performed the sampling or measurements;

c. The dates the analyses were performed;

d. The person(s) who performed the analyses;

e. The analytical techniques or methods used; and

f. The results of all required analyses and measurements.

An inspection by IDEM representatives of the Respondent's wastewater treatment

plant on January 15, 2002 revealed that the Respondent failed to record all required

information. In addition, an inspection by IDEM representatives of the Respondent's wastewater treatment plant on May 9, 2002 revealed that the Respondent failed to record the sample time for Dissolved Oxygen. The Respondent's failure to record all required information is in violation of 327 IAC 5-2-8(1), Part II.A.1 of the current Permit, 327 IAC 5-2-14(a), and Part I.B.6 of the current permit.

H. Pursuant to 327 IAC 5-2-8(1) and Part II.A.1 of the prior Permit, the Respondent was required to comply with all terms and conditions of the prior Permit.

Pursuant to 327 IAC 5-2-14(b) and Part I.B.8 of the prior Permit, all records of monitoring activities and results were required to be retained by the Respondent, at the permitted facility, for three (3) years.

During the IDEM inspection of the Respondent's wastewater treatment plant on April 5, 2001 it was noted that the only Discharge Monitoring Reports and Monthly Reports of Operation that were present were December 2000 and January 2001. In addition, during an IDEM inspection of Respondent's wastewater treatment plant on July 12, 2001 it was noted that Discharge Monitoring Reports and Monthly Reports of Operation for May and June 2001 were not present. The Respondent's failure to retain, at the permitted facility, all records of monitoring activities and results is in violation of 327 IAC 5-2-8(1), Part II.A.1 of the prior Permit, 327 IAC 5-2-14(b) and Part I.B.8 of the prior Permit.

I. Pursuant to 327 IAC 5-2-8(1) and Part II.A.1 of the prior Permit, the Respondent was required to comply with all terms and conditions of the prior Permit.

Pursuant to Part I.B.3 of the prior Permit, Discharge Monitoring Reports and Monthly Reports of Operation were required to be submitted to IDEM by the 28^th day of the month following the monitoring period.

Pursuant to 327 IAC 5-2-8(1) and Part II.A.1 of the current Permit, the Respondent is required to comply with all terms and conditions of the current Permit.

Pursuant to Part I.B.3 of the current Permit, Discharge Monitoring Reports and Monthly Reports of Operation must be submitted to IDEM by the 28^th day of the month following the monitoring period.

IDEM records indicate that the February 2001 Discharge Monitoring Report, due to be submitted by March 28, 2001, was not submitted until May 3, 2001, and the March 2001 Discharge Monitoring Report, due to be submitted by April 28, 2001, was not submitted until May 17, 2001, in violation of 327 IAC 5-2-8(1), Part II.A.1 of the prior Permit, and Part I.B.3 of the prior Permit. In addition, IDEM records indicate that the December 2001 Discharge Monitoring Report, due to be submitted by January 28, 2002, was not submitted until March 5, 2002, the January 2002 Discharge Monitoring Report, due to be submitted by February 28, 2002, was not submitted until May 20, 2002, and the March 2002 Discharge Monitoring Report, due to be submitted by April 28, 2002, was not submitted until May 20, 2002, in violation of 327 IAC 5-2-8(1), Part II.A.1 of the current Permit and Part I.B.3 of the current Permit. Further, IDEM records indicate that the April 2002 Discharge Monitoring Report, due to be submitted by May 28, 2002, and the May 2002 Discharge Monitoring Report, due to be submitted by June 28, 2002, has not been

submitted as of July 11, 2002, in violation of 327 IAC 5-2-8(1), Part II.A.1 of the current Permit and Part I.B.3 of the current Permit.

6. In a correspondence to IDEM dated July 28, 2003, the Respondent advised IDEM that the following actions have been taken to correct the above noted violations:

a. In the Spring of 2002, two new sludge digesters and new return sludge pumps were added to the wastewater treatment plant to recycle decant and processed liquid sludge to the drying beds.

b. In August 2002, a new sludge management and disposal program, as described below, was implemented.

Sludge is wasted at the Marengo WWTP daily. Volumes are determined by suspended solids and BOD test results and settling tests. Also, a sludge judge is used to measure depth of solids in tanks.

Generated sludge is wasted to the digester, where it is

aerated, digested, and decanted, and then pumped to the drying beds for dewatering.

After the sludge is dewatered, it is promptly removed and placed in a 40 cubic yard covered container. Sludge is removed from this container and disposed of at Blackfoot Landfill at least monthly.

c. In the Spring of 2002, a 100,000 gallon clarifier was added to provide more wastewater treatment capacity and flexibility during wet weather periods.

d. A computer system is being utilized to help assure that the Discharge Monitoring Reports and Monthly Reports of Operation are timely prepared and submitted to IDEM and that copies are maintained on site.

e. A QA/QC program has been instituted.

f. A new flow proportionate chlorine disinfection system has been installed at the WWTP.

g. A wastewater treatment plant maintenance program has been developed and implemented.

h. The main lift station was refurbished with new larger horsepower pumps and new control panels.

i. The flow measurement equipment is calibrated and maintained on a routine basis by River City Controls. A new V-notch weir was installed to aid flow measurement and flows are charted on a 24-hour basis.

7. In recognition of the settlement reached, Respondent waives any right to administrative and judicial review of this Agreed Order.

II. ORDER

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.

The Respondent shall comply with all terms and conditions of its NPDES Permit.

3. Respondent is assessed a Civil Penalty of Five Thousand One Hundred Dollars ($5,100). The civil penalty shall be paid in the following manner:

Amount Due Date Due

$1,275 within 30 days of the Effective Date

$1,275 within 90 days of the Effective Date

$1,275 within 150 days of the Effective Date

$1,275 within 210 days of the Effective Date

4. The civil penalty installments are payable by check to the Environmental Management Special Fund. The 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, Indiana 46207-7060

5. In the event that the civil penalty installments required by Order paragraph 3 are not paid when due, 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.

6. 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 party 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. The Complainant may seek any remedy or sanction available by virtue of Respondent's violation of this Agreed Order, including but not limited to civil penalties pursuant to IC 13-30-4.

12. "Force Majeure" for purposes of this Agreed Order, is defined as any event arising from causes totally beyond the control and without fault of the Respondent that delays or prevents the performance of any obligation under this Agreed Order despite Respondent=s best efforts to fulfill the obligation. The requirement that the Respondent exercise "best efforts to fulfill the obligation" includes using best efforts to anticipate any potential force majeure event and best efforts to address the effects of any potential force majeure event (1) as it is occurring and (2) following the potential force majeure event, such that the delay is minimized to the greatest extent possible. "Force Majeure" does not include changed business or economic conditions, financial inability to complete the work required by this Agreed Order, or increases in costs to perform the work.

The Respondent shall notify IDEM by calling the case manager within three (3) calendar days and by writing no later than seven (7) calendar days after it has knowledge of any event which the Respondent contends is a force majeure. Such notification shall describe the anticipated length of the delay, the cause or causes of the delay, the measures taken or to be taken by the Respondent to minimize the delay, and the timetable by which these measures will be implemented. The Respondent shall include with any notice all available documentation supporting its claim that the delay was attributable to a force majeure. Failure to comply with the above requirements shall preclude Respondent from asserting any claim of force majeure for that event. The Respondent shall have the burden of demonstrating that the event is a force majeure. The decision of whether an event is a force

majeure shall be made by IDEM.

IDEM agrees that, if a delay is attributable to a force majeure, IDEM shall extend, in writing, the time period for performance under this Agreed Order, by the amount of time that is directly attributable to the event constituting the force majeure.

13. This Agreed Order shall remain in effect until Respondent has complied with Paragraphs 2 through 5 of this Agreed Order and IDEM issues a close-out letter.

TECHNICAL RECOMMENDATION RESPONDENT

Department of Environmental Management Town of Marengo

By: _________________________ By: _________________________

Mark W. Stanifer, Chief

Water Enforcement Section Printed:_David Mauck _

Office of Enforcement

Title: ___Town Council President_

Date: _______________ Date: _______________

COUNSEL FOR COMPLAINANT COUNSEL FOR RESPONDENT

Department of Environmental Management

By: _________________________ By: _________________________

Hala K. Silvey Marcus M. Burgher III

Office of Legal Counsel Luckett, Burgher & Burgher

Date: _______________ Date: ______________ _

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _______ DAY OF _______________________, 2004.

For the Commissioner:

__(Signed February 24, 2004)_____

Felicia A. Robinson

Deputy Commissioner

For Legal Affairs