STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT OF

) SS: ENVIRONMENTAL MANAGEMENT

COUNTY OF MARION )

COMMISSIONER OF THE DEPARTMENT )

OF ENVIRONMENTAL MANAGEMENT, )

)

Complainant, )

) CASE NO. 2001-10466-W

v. )

)

TOWN OF SWEETSER )

)

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 ("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, Town of Sweetser ("Respondent"), owns and operates a sanitary sewer collection system. The municipal sewer system transports wastewater to the City of Marion sewer system and wastewater treatment plant. The Town=s sanitary sewer collection system is designed and constructed to be 100% separated from any storm water systems, and is located in Grant County, Indiana.

3. IDEM has jurisdiction over the parties and subject matter of this action.

 

 

 

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

Mr. James Henderson,

Town Council President

The Town of Sweetser

113 North Main Street

Sweetser, IN 46987

5. 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 pursuant under this title.
  1. 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.
  1. Pursuant to 327 IAC 5-2-2, any discharge of pollutants into the 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.

8. Pursuant to 327 IAC 2-6.1-4(11), "objectionable substances" means substances that are:

a) of a quantity and a type; and

b) present for a duration and in a location; so as to damage waters of the state, excluding hazardous substances, extremely hazardous substances, petroleum, and mixtures thereof.
  1. Pursuant to 327 IAC 2-6.1-4(15), a spill is defined as any unexpected, unintended, abnormal, or unapproved dumping, leakage, drainage, seepage, discharge or other loss of petroleum, hazardous or otherwise objectionable substance.
  2. Pursuant to 327 IAC 2-6.1-7, any person who operates, controls or maintains any mode of transportation or facility from which a spill occurs shall, upon discovery of a reportable spill to the soil or surface waters of the state: contain the spill, if possible, to prevent additional spilled material from entering the waters of the state; undertake or cause others to undertake activities needed to accomplish a spill response; as soon as possible, but within two (2) hours of discovery, communicate a spill report to the Department of Environmental Management, Office of Environmental Response: and submit a written spill report if requested in writing by the department.

11. An IDEM investigation has shown that discharges of wastewater occur from Kelly Drive lift station and from at least two manholes in the sanitary sewer system. The overflow wastewater goes into the street, and at least one residential yard, then to a field and nearby ditch, which empties into Pipe Creek. The Respondent is known to have had an overflow on April 10, 2001.

12. The above noted overflow of wastewater from the sewer system to the soil and to surface waters of the state that occurred was in violation of IC 13-30-2-1, IC 13-18-4-5, and 327 IAC 5-2-2.

13. The above noted overflow of wastewater from the sewer system to the soil and to surface waters of the state that occurred on April 10, 2001 was not reported to IDEM by the Town of Sweetser. The Town of Sweetser's failure to report these events, which constitute reportable spills, is in violation of 327 IAC 2-6.1-7.
  1. A settlement conference was held on August 16, 2001, at which Respondent noted that lift station pump replacement work was done. Also, an engineering study was acquired, and its suggested corrective measures have been initiated to improve operation of the existing lift stations. Respondent expressed an interest in pursuing the study's further recommended system upgrades, including a new lift station, to attain compliance.

15. 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:
    1. A study of recently acquired engineering report recommendations, which include corrective measures for the replacement of air release valves, and further construction of a new lift station and standby generator. Respondent shall submit a progress report within 30 days from the Effective Date.
      1. If the study determines that further construction is necessary to permanently eliminate un-permitted discharges of objectionable substances and the overflow of wastewater from the sanitary sewer system, then a construction schedule with milestone dates for completion shall be submitted. The construction schedule shall be submitted within 120 days of the Effective Date;
      2. If the study determines that cessation of un-permitted discharges of objectionable substances and the overflow of wastewater from the sanitary sewer system can be achieved without further construction, then Respondent shall be under a performance period during which it shall maintain full compliance with all applicable rules and statutes. Respondent shall comply with the requirements of the performance period until 12 consecutive months of compliance are demonstrated. If Respondent fails to attain compliance for 12 consecutive months within 24 months of the study conclusion, then IDEM, at its discretion, may initiate another enforcement action against the Respondent.
    1. A study addressing reduction of Inflow and Infiltration (I/I) including:
    1. update over-all sewer maps, including all sewer extensions and appurtenances;
    2. conduct system-wide flow monitoring to evaluate quantity and location of problems;
    3. develop a physical survey of all manholes;
    4. conduct smoke testing in identified inflow problem areas;
    5. conduct house-to-house inspections;
    6. conduct internal, closed circuit television inspection of identified I/I problem areas;
    7. a schedule for correction of defects found during the study.

c. Interim Measures to be taken to operate the existing sanitary sewer collection system as efficiently as possible until any new additions and/or rehabilitations are completed.

    1. If a discharge occurs from any bypass/overflow point, Respondent shall notify the Office of Water Quality, Compliance Evaluation Section within 24 hours and in writing within five (5) days of the event. Notification by facsimile transmission to (317) 232-8637 or (317) 232-8406 within 24 hours of the event shall be sufficient to serve as the required written notification. The correspondence shall include the duration, estimated volume of flow, and cause of the discharge as well as the intended remedial action to be taken to eliminate it.
    2. An updated Operation and Maintenance (O&M) Manual for use in training operational personnel and providing a Standard Operating Procedure (SOP) for effective O&M of the sanitary sewer collection system. The O&M Manual will include design and use of updated log-sheet forms to document actual monitoring and maintenance at the facility on a daily basis. The updated O&M Manual shall also include a study of the potential need to apply for an operational permit from IDEM, and requirements for ready availability of all needed information for on-site inspection, as well as for timely reporting of all overflows to IDEM. Final submission shall be contingent upon conclusion of subparagraph a., above.

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 $1,500. Said penalty amount shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the Effective Date.

6. 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.a.,b.,c., e., 3. $150 per week the CP, or any reports, are submitted late, or approved milestone dates are not met;

Paragraph 2.d. $250 per event any overflow is not timely reported.

7. 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.

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, Indiana 46207-7060.

9. 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.

10. 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.

11. 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 any applicable federal or state law or regulation.

12. 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.

13. 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.

14. 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.

15. If the Respondent or the Respondent's agent or contractor fails to comply with any requirement of this Order, such failure may constitute a "Force Majeure" event. "Force Majeure", for the purposes of this Order, is defined as any event arising from causes beyond the control 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.

The Respondent shall notify IDEM by calling within three (3) calendar days and by writing no later than seven (7) calendar days after 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 their 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. Said decision shall be communicated to the Respondent.

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

16. 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.

TECHNICAL RECOMMENDATION: RESPONDENT:

Department of Environmental Management

By: _________________________ By: _________________________

Mark Stanifer, Section Chief James Henderson, President

Office of Enforcement Sweetser Town Council

 

 

Date: _______________ Date: _______________

 

 

COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:

Department of Environmental Management

By: _________________________ By: ________________________

Candace T. Vogel Kim A. Rogers

Office of Legal Counsel Rogers & Rogers P.C.

Department of Environmental Management

Date: _______________ Date: _______________

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _______________________ DAY OF ____________________, 2002.

 

 

FOR THE COMMISSIONER:

 

 

Signed 1/29/02

Felicia A. Robinson

Assistant Commissioner of Enforcement