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. 2002-11243-W
)
TOWN OF BRUCEVILLE, )
)
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 (hereinafter referred to as "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 is the Town of Bruceville ("Respondent"), located in Knox County, Indiana.
3. The Indiana Department of Environmental Management ("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. Everett Dillon, President
Town Council of Bruceville
Town Hall
P. O. Box 247
Bruceville, Indiana 47516
5. Pursuant to IC 13-30-2-1, a person may not 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 that causes or would cause pollution that violates or would violate rules, standards, or discharge or emission requirements adopted by the appropriate board under the environmental management laws.
6. 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 the state, or to cause, permit or suffer to be thrown, run, drained, allowed to seep, or otherwise disposed into any waters any organic or inorganic matter that shall cause or contribute to a polluted condition of any waters, as determined by a rule of the board adopted under IC 13-18-4-1 and IC 13-18-4-3.
7. 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 National Pollutant Discharge Elimination System (NPDES) permit obtained prior to the discharge.
8. Pursuant to 327 IAC 2-1-6(a)(1), 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:
(E) which are in concentrations or combinations that will
cause or contribute to the growth of aquatic plants or algae to such a degree as to create a nuisance, be
unsightly, or otherwise impair the designated uses.
9. An investigation by IDEM, which included a review of IDEM records, including the results of samples obtained in June 2003, indicates that the Respondent discharges untreated sewage into waters of the state, without an NPDES Permit, in violation of IC 13-30-2-1 and 327 IAC 5-2-2. The investigation further indicates that the discharges cause the receiving waters to contain E. coli bacteria concentrations in amounts sufficient to be deleterious, in violation of IC 13-30-2-1, IC 13-18-4-5, and 327 IAC 2-1-6(a)(1).
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. The Respondent shall comply with IC 13-30-2-1, IC 13-18-4-5, 327 IAC 5-2-2
and 327 IAC 2-1-6(a)(1).
3. Within 180 days of the Effective Date of this Agreed Order, the Respondent shall develop and submit to IDEM for approval a "Compliance Plan" that describes the actions that the Respondent will take to eliminate the unlawful discharge of untreated sewage to waters of the state. Such actions shall include, but not necessarily be limited to:
The Compliance Plan shall include an implementation and completion schedule, including specific milestone dates.
4. Upon completion of the Compliance Plan required pursuant to Order Paragraph
3 above, the Respondent shall be subject to the stipulated penalties provided for in Order Paragraph 10 below for any violation of any effluent limitation contained in the Respondent’s NPDES Permit.
5. The Respondent shall, within six months of completion of the Compliance Plan required by Paragraph 3 above (Performance Period), demonstrate five consecutive months of compliance (Compliance Demonstration) with the effluent limitations contained in the NPDES Permit. With respect to the effluent limitations for E. coli and Total Residual Chlorine (if applicable), the Compliance Demonstration must occur during the months in which those effluent limitations are in effect.
In the event that the Respondent fails to make the Compliance Demonstration, the Respondent shall, within sixty days of becoming aware that the Compliance Demonstration cannot be achieved, develop and submit to IDEM, for approval, an "Action Plan" that identifies the additional actions that the Respondent will take to achieve and maintain compliance with the effluent limitations contained in the NPDES Permit. The Action Plan, if required, shall include an implementation and completion schedule, including specific milestone dates.
6. The plans required pursuant to Order Paragraphs 3 and 5 above are subject to IDEM approval. If IDEM deems a plan to be inadequate, a revised plan shall be submitted within 15 days of receipt of notice from IDEM of the inadequacies thereof. If, after submission of the first revised plan, IDEM still finds the plan to be inadequate, then IDEM will request further modification of the plan as necessary to meet IDEM’s requirements, and require re-submittal of the plan by a specific date. If the subsequently submitted second revised plan does not meet IDEM’s approval, IDEM will suggest specific modifications to be made to the plan and require re-submittal by a specific date. If, by the specified date, the Respondent does not submit a third revised plan that incorporates the IDEM-suggested modifications or submit an alternative adequate plan (as determined by IDEM), the IDEM-suggested modifications will be deemed incorporated into the plan.
7. The plans required pursuant to Order Paragraphs 3 and 5 above shall, upon approval by IDEM, be incorporated into this Agreed Order and shall be deemed an enforceable part thereof. The Respondent, upon receipt of written approval from IDEM, shall immediately implement the approved plan and adhere to the milestone dates contained therein.
8. The Respondent shall notify IDEM, in writing, within 10 days of completion of
each action contained in any approved plan. The notification shall include a description of the action completed and the date it was completed.
9. All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:
Paul Cluxton, Case Manager, Water Section
Office of Enforcement
Indiana Department of Environmental Management
100 N. Senate Avenue
P. O. Box 6015
Indianapolis, IN 46206-6015
10. In the event the terms and conditions of the following Order paragraphs are violated, the Complainant may assess and the Respondent shall pay a stipulated penalty in the following amount:
|
Order Paragraph Number |
Violation |
Penalty Amount |
|
3 |
Failure to timely submit the Compliance Plan |
$250 per each week |
|
4 |
Failure to comply with any effluent limitation contained in the NPDES Permit subsequent to completion of the Compliance Plan |
$1000 per violation |
|
5 |
Failure to timely submit the Action Plan |
$250 per each week |
|
6 |
Failure to timely revise and resubmit any plan |
$250 per each week |
|
7 |
Failure to meet any milestone date set forth in any approved plan |
$500 per each week |
|
8 |
Failure to timely submit notification to IDEM |
$250 per each week |
11. Stipulated penalties shall be due and payable within 30 days after the 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 the Respondent's violation of this Agreed Order, or Indiana law, including but not limited to civil penalties pursuant to IC 13-30-4.
12. 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
Indiana Department of Environmental Management
100 N. Senate Avenue
P. O. Box 7060
Indianapolis, IN 46207-7060
13. In the event that any stipulated penalty amount assessed pursuant to Paragraphs 10 and 11 is not paid within 30 days of receipt of notice that it is 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 penalty is paid in full.
14. 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.
15. 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.
16. The Respondent shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights are transferred. The Respondent shall ensure that all contractors, firms and other persons performing work under this Agreed Order comply with the terms of this Agreed Order.
17. 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 any applicable requirements of federal or state law or regulation.
18. This Agreed Order is not and shall not be interpreted to be a Permit, nor shall it in any way relieve the Respondent of its obligation to comply with the applicable requirements of federal or state law or regulation.
19. This Agreed Order shall remain in effect until the Respondent has complied with all terms and conditions of Agreed Order Paragraphs 3 through 13 and IDEM issues a close-out letter to the Respondent.
Remainder of Page Left Blank Intentionally
TECHNICAL RECOMMENDATION: RESPONDENT:
Department of Environmental Management Town of Bruceville
By: ______________________________ By: ______________________________
Mark W. Stanifer
Section Chief, Water Section Printed: __Everett Dillon__ ______
Office of Enforcement
Title: President, Bruceville Town Council
Date: _______________________________ Date: ______________________________
COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:
Department of Environmental Management
By: ______________________________ By: ______________________________
Hala K. Silvey
Office of Legal Counsel
Date: ______________________________ Date: ______________________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _______________ DAY OF __________________________, 200_.
For The Commissioner:
___(Signed February 12, 2004)__________
Felicia A. Robinson
Deputy Commissioner
for Legal Affairs