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. 2001-10470-W

INDIANAPOLIS WATER COMPANY, )

)

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. Pursuant to IC 13-30-3-3, entry into the terms of this Agreed Order does not constitute an admission of any violation contained herein. The Respondent's entry into this Agreed Order shall not constitute a waiver of any defense, legal or equitable, which the Respondent may have in any future administrative or judicial proceeding.

 

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 Indianapolis Water Company ("Respondent"), which owns and operates the Indianapolis Water Company (IWC) White River drinking water treatment plant located at 950 W. 16th Street, Indianapolis, Marion County, Indiana.

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

    1. Pursuant to IC 13-30-3-3, on July 11, 2001, IDEM issued a Notice of Violation via Certified Mail to:

Mr. Joseph R. Broyles, President Mr. John M. Davis, Registered Agent

Indianapolis Water Company Indianapolis Water Company

1220 Waterway Boulevard 1220 Waterway Boulevard

Indianapolis, IN 46202 Indianapolis, IN 46202

The Notice of Violation addressed the violations specified in Paragraphs 5, 6, and 7 below

5. 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 and/or otherwise objectionable substance which enters or threatens to enter the waters of the state.

Pursuant to 327 IAC 2-6.1-5, a spill that damages the waters of the state so as to cause death or acute injury or illness to humans or animals, a spill of an objectionable substance to surface waters, or a spill for which a spill response has not been done is a reportable spill.

Pursuant to 327 IAC 2-6.1-7, any person who operates, controls, or maintains any facility from which a spill occurs shall, upon discovery of a reportable spill:

(A) Contain the spill, if possible, to prevent additional spilled material from entering the waters of the state.
    1. Undertake or cause others to undertake activities needed to accomplish a spill response.
    2. As soon as possible, but within two (2) hours of discovery, communicate a spill report to the Department of Environmental Management.
    3. Submit to the Department of Environmental Management, a written copy of the spill report if requested in writing by the department.
    4. Except from modes of transportation other than pipelines, exercise due diligence and document attempts to notify the following:
    1. For spills to surface water that cause damage, the nearest affected downstream water user located within ten (10) miles of the spill and in the state of Indiana; and
    2. For spills to soil outside the facility boundary, the affected property owner or owners, operator or operators, or occupant or occupants.

On April 24, 2001, IWC discharged approximately 5.5 million gallons of water, containing a total residual chlorine concentration in excess of 2.42 mg/l and a free chlorine concentration in excess of .05 mg/l, from the IWC White River drinking water treatment plant into Fall Creek. The Respondent contends that the discharge was necessitated by its observation of anomalies at the White River drinking water treatment plant that caused the Respondent to become concerned about the adequacy of disinfection. On April 25, 2001, IDNR notified IDEM of a fish kill in Fall Creek, in the vicinity of 1400 North Milburn. Representatives of IDEM's Environmental Response Section (ERS), IDNR, and the MCHD conducted an investigation of the fish kill incident. The investigation revealed dead fish downstream of IWC’s White River drinking water treatment plant, but no evidence of dead fish upstream of IWC’s White River drinking water treatment plant. On April 25, 2001 IDNR notified IWC of the fishkill incident. Subsequent to being informed of the fishkill incident, IWC advised IDEM, verbally on April 26, 2001 and in writing on April 27, 2001, of its aforementioned April 24 discharge. Based on the investigation, IDEM concluded that, due to the date, time, volume, and content of the water discharged by IWC on April 24, 2001, and the location of the fish kill, IWC was the source of the fishkill.

IDEM contends that IWC’s aforementioned April 24, 2001 discharge of water containing chlorine into Fall Creek constituted a spill, as defined by 327 IAC 2-6.1-4(15). IDEM further contends that, pursuant to 327 IAC 2-6.1-5, the spill was reportable and therefore subject to the requirements of 327 IAC 2-6.1-7, as it was a spill that damaged the waters of the state so as to cause death or acute injury or illness to animals and/or was a spill of an objectionable substance to surface waters and/or was a spill for which a spill response had not been done. IDEM contends that IWC failed to contain the spill to prevent additional spilled material from entering the waters of the state; and/or failed to undertake or cause others to undertake activities needed to accomplish a spill response; and/or failed to communicate a spill report to the Department of Environmental Management within two (2) hours of discovery; and/or failed to notify the nearest affected downstream water user located within ten (10) miles of the spill and in the state of Indiana, in violation of 327 IAC 2-6.1-7.

6. 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.

On April 24, 2001, IWC discharged approximately 5.5 million gallons of water, containing a total residual chlorine concentration of 2.42 mg/l and a free chlorine concentration of .05 mg/l, from the IWC White River drinking water treatment plant into Fall Creek, in violation of 327 IAC 5-2-2.

7. Pursuant to 327 IAC 2-1-6(a):

(A) All waters at all times and at all places, including the mixing zone, 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:

(1) that will settle to form putrescent or otherwise objectionable deposits;

(2) that are in amounts sufficient to be unsightly or deleterious;

(3) that produce color, visible oil sheen, odor, or other conditions in such degree as to create a nuisance;

(4) which are in amounts sufficient to be acutely toxic to, or to otherwise severely injure or kill aquatic life, other animals, plants, or humans; and

(5) which are in concentrations or combinations that will cause or contribute to the growth of aquatic plants or algae to such degree as to create a nuisance, be unsightly, or otherwise impair the designated uses.

(B) At all times, all waters outside of mixing zones shall be free of substances in concentrations which on the basis of available scientific data are believed to be sufficient to injure, be chronically toxic to, or be carcinogenic, mutagenic, or teratogenic to humans, animals, aquatic life, or plants.

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.

On April 24, 2001, IWC discharged approximately 5.5 million gallons of water,

containing a total residual chlorine concentration of 2.42 mg/l and a free chlorine

concentration of .05 mg/l, from the IWC White River drinking water treatment

plant into Fall Creek. On April 25, 2001, IDNR notified IDEM of a fish kill in Fall Creek, in the vicinity of 1400 North Milburn. Representatives of IDEM's Emergency Response Section (ERS), IDNR, and the MCHD conducted an investigation of the fish kill incident. The investigation revealed dead fish downstream of IWC’s White River drinking water treatment plant, but no evidence of dead fish upstream of IWC’s White River drinking water treatment plant. The investigation concluded that, due to the date, time, volume, and content of the water discharged by IWC on April 24, 2001, and the location of the fish kill, IWC was the source of the fishkill.

IWC’s discharge of water containing chlorine in amounts sufficient to be deleterious and/or in amounts sufficient to be acutely toxic to, or to otherwise severely injure or kill aquatic life is in violation of 327 IAC 2-1-6(a), IC 13-18-4-5 and IC 13-30-2-1.
    1. Subsequent to the issuance of the Notice of Violation, a review of IDEM records revealed that IWC failed to submit an application for renewal of its NPDES permit, prior to the expiration date of the permit. Therefore, IWC did not have authorization to discharge from its White River drinking water treatment plant beyond June 30, 1989. Accordingly, discharges from the White River drinking water treatment plant on or after July 1, 1990 have occurred without a valid NPDES permit.
    2. On December 28, 2001, IDEM issued to the Respondent a new NPDES Permit for its White River drinking water treatment plant, which became effective on February 1, 2002.

10. 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. Respondent is assessed a civil penalty of Three Thousand Six Hundred Dollars (3,600). Said penalty amount shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the Effective Date of this Agreed Order.

3. Civil 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

4. In the event that the civil penalty required by Order Paragraph 2 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.
    1. 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.
    2. 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.

7. 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.

8. 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.

9. 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.

10. This Agreed Order shall remain in effect until the Respondent complies with Order Paragraphs 3 and 4 and IDEM issues a "close out" letter to the Respondent.

TECHNICAL RECOMMENDATION: RESPONDENT:

Department of Environmental Management Indianapolis Water Company

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: ________________________

Hala 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 March 14, 2002

Felicia A. Robinson

Deputy Commissioner

for Legal Affairs