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COMMISSIONER OF THE DEPARTMENT |
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Complainant, |
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CASE
NO. 2002-11411-W |
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CITY OF |
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Respondent. |
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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, a department of the State
of
2.
Respondent is the City of Elwood (“Respondent”),
owner and operator of a publicly owned treatment works that includes a
wastewater treatment plant (WWTP) located on South J Street, in Elwood, in
Madison County, Indiana. The Respondent
is authorized by its National Pollutant Discharge Elimination System (NPDES)
permit No. IN 0032719 (the Permit) to discharge
treated wastewater to receiving waters named Duck Creek, in accordance with
effluent limitations, monitoring requirements, and other conditions set forth
in the Permit.
3.
The Indiana Department of Environmental Management
(“IDEM”) has jurisdiction over the parties and the subject matter of this
action.
4.
Pursuant to IC 13-30-3-3, on
The Honorable Phil Metzger, Mayor
City of
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 327 IAC
7.
Pursuant to 327 IAC
8.
Pursuant to Part I.A.1 of the Permit, the Respondent
is required to comply with the effluent limitations applicable to the discharge
from Outfall 001.
9.
Discharge Monitoring Reports (DMRs),
Monthly Reports of Operation (MROs), and/or letters
submitted by the Respondent to IDEM for the period from January 2000 through
September 2002, reveal that the Respondent failed to comply with final effluent
limitations applicable to the discharge from Outfall 001 as follows, in
violation of IC 13-30-2-1, 327 IAC 5-2-2, 327 IAC 5-2-8(1), Part II.A.1 of the
Permit, and Part I.A.1 of the Permit.
a.
The daily maximum effluent limitation for Escherichia
coli (E. coli) bacteria was violated during October 2000, April through October
2001, and June through September 2002.
b.
The monthly average effluent limitation for E. coli
bacteria was violated in April and September 2001, and August and September
2002.
c.
The monthly average effluent limitation for Total
Suspended Solids was violated in January 2001.
10.
Pursuant to Part I.A.2.b of the Permit, the discharge
from any and all point sources regulated within the Permit shall not cause receiving
waters, including the mixing zone, to contain substances, materials, floating
debris, oil, or scum that are in amounts sufficient to be unsightly or
deleterious.
11.
During an inspection of the Respondent's wastewater
treatment plant conducted on
12.
Pursuant to Part I.A.1 of the Permit, the Respondent
is required to monitor the discharge from Outfall 001, for various parameters,
including E. coli bacteria, Carbonaceous Biochemical Oxygen Demand, 5-day
(CBOD), Total Suspended Solids (TSS), and ammonia-nitrogen, at a minimum
frequency of 5 days per week.
13.
Pursuant to Part I.B.3 of the Permit, the Respondent
is required to submit monitoring reports to IDEM, including the DMR and the
MRO, containing all monitoring results obtained during the previous month.
14.
A review of DMRs, MROs, and/or letters submitted by the Respondent to IDEM
for the period from January 2000 through April 2002, revealed the following:
a.
The Respondent failed to monitor for E. coli bacteria
at the minimum frequency required by the Permit on one or more occasions during
April through October 2000, and April, May, and August 2001, in violation of
327 IAC 5-2-8(1), Part II.A.1 of the Permit, and Part I.A.1 of the Permit
and/or failed to report the results of all E. coli bacteria monitoring
conducted during April through October 2000 and April, May, and August 2001, in
violation of 327 IAC 5-2-8(1), Part II.A.1 of the Permit, and Part I.B.3 of the
Permit.
b.
The Respondent failed to monitor for CBOD at the
minimum frequency required by the Permit on one or more occasions during
February, March, May and August 2000, and May, June, and August 2001, in
violation of 327 IAC 5-2-8(1), Part II.A.1 of the Permit, and Part I.A.1 of the
Permit and/or failed to report the results of all CBOD monitoring conducted
during February, March, May and August 2000, and May, June, and August 2001, in
violation of 327 IAC 5-2-8(1), Part II.A.1 of the Permit, and Part I.B.3 of the
Permit.
c.
The Respondent failed to monitor for TSS at the
minimum frequency required by the Permit on one or more occasions during May
2000, and June and August 2001, in violation of 327 IAC 5-2-8(1), Part II.A.1
of the Permit, and Part I.A.1 of the Permit and/or failed to report the results
of all TSS monitoring conducted during May 2000, and June and August 2001, in
violation of 327 IAC 5-2-(1), Part II.A.1 of the Permit, and Part I.B.3 of the
Permit.
d.
The Respondent failed to monitor for ammonia-nitrogen
at the minimum frequency required by the Permit on one or more occasions during
February, March, May, and August 2000, and February and August 2001, in
violation of 327 IAC 5-2-8(1), Part II.A.1 of the Permit, and Part I.A.1 of the
Permit and/or failed to report the results of all ammonia-nitrogen monitoring
conducted during February, March, May, and August 2000, and February and August
2001, in violation of 327 IAC 5-2-8(1), Part II.A.1 of the Permit, and Part
I.B.3 of the Permit.
15.
Pursuant to Part I.A.1 of the Permit, the Respondent
is required to comply with the monitoring requirements applicable to the
discharge from Outfall 001, and is required to take samples and measurements
necessary to satisfy the monitoring requirements at a location representative
of the discharge from Outfall 001.
16.
Part I.B.1 of the Permit provides that samples and
measurements taken as required in the Permit shall be representative of the volume
and nature of the monitored discharge.
17.
Page 2 of the Permit, Treatment Facility Description,
states that wastewater discharged from Outfall 101, the equalization basin
bypass, rejoins the wastestream that has undergone
tertiary treatment, and during disinfection season, chlorination and dechlorination (hereinafter referred to as “tertiary
effluent”) at a junction box located after the chlorine contact tank, prior to
the discharge from Outfall 001 to Duck Creek, and is to be included with the
monitoring of Outfall 001.
18.
A review of records submitted by the Respondent to
IDEM and/or records maintained by the Respondent revealed that, on multiple
days between January 2000 and December 2001 on which a discharge from Outfall
101 occurred, samples collected by the City of Elwood to satisfy the Permit
monitoring requirements applicable to the discharge from Outfall 001 for
various parameters, including E. coli bacteria, ammonia-nitrogen, dissolved
oxygen, pH, BOD, and TSS, were not obtained from a location downstream of the
junction box where flow from Outfall 101 rejoins the tertiary effluent. Therefore, such samples did not include
wastewater from Outfall 101, and thus were not representative of the discharge
from Outfall 001, in violation of 327 IAC
19.
Pursuant to Part I.A.1 of the Permit, the Respondent
is required to obtain 24- Hour composite samples of the discharge from Outfall
001 for Carbonaceous Biochemical Oxygen Demand, 5-day (CBOD), Total Suspended
Solids (TSS), and ammonia-nitrogen.
20.
Part I.B.4.b.(4) of the
Permit specifies that a 24-Hour composite sample must consist of at least 4
grab samples, proportioned to flow. Part I.B.4.b.(4)
of the Permit further specifies the manner in which a flow proportioned
composite sample is to be obtained.
21.
Pursuant to Part I.B.8 of the Permit, the Respondent
is required to retain all records and information resulting from the monitoring
activities required by the Permit.
22.
An inspection conducted by a representative of IDEM
on December 12, 2001 revealed that, while an automatic sampler capable of
collecting composite samples has been installed at a location representative of
the discharge from Outfall 001, records maintained by the Respondent do not
indicate either when the automatic sampler was activated, or whether a 24- hour
composite sample, as defined in the NPDES Permit, is being obtained. In addition, the inspection revealed that,
prior to installation and activation of the automatic sampler, grab samples,
rather than 24- Hour composite samples, were obtained for CBOD, TSS, and
ammonia nitrogen. Accordingly, the Respondent has failed to obtain 24-Hour
composite samples as required by the Permit, in violation of 327 IAC 5-2-8(1),
Part II.A.1 of the Permit, and Part I.A.1 of the Permit and/or failed to retain
all records and information resulting from the monitoring activities required
by the Permit, in violation of 327 IAC 5-2-8(1), Part II.A.1 of the Permit, and
Part I.B.8 of the Permit.
23.
Pursuant to Part I.D of the Permit, the Respondent
was required to:
a.
within 90 days of the effective date of the Permit,
initiate a series of bioassay tests, as described in the Permit, to monitor the
toxicity of the discharge from Outfall 001;
b.
conduct monthly, for a period of three months, the
bioassay tests; and
c.
no later than 60 days after
completion of each test, report, in the manner specified in the Permit, the
results to IDEM.
24.
An inspection conducted by a representative of IDEM
on
25.
Pursuant to Part II.B.2.b of the Permit, bypasses are
prohibited unless the following conditions are met:
a.
Bypass was unavoidable to prevent loss of life,
personal injury, or severe property damage (as defined in Part II.B.2.a.(2) of
the Permit);
b.
There were no feasible alternative to the bypass,
such as the use of auxiliary treatment facilities, retention of untreated
wastes, or maintenance during normal periods of equipment downtime; and
c.
The Permittee submitted notices as required under
Part II.B.2.d of the Permit.
26. Pursuant to Part II.B.2.g of the Permit, Outfall 101 is
designated as a wastewater treatment plant bypass point, and as such, discharge
from Outfall 101 is prohibited unless the conditions set forth in Part II.B.2.b
of the Permit are satisfied.
27. A review of IDEM records and/or records maintained by the
Respondent revealed that, on multiple days between January 2000 and December
2001, discharges from Outfall 101 occurred, without a demonstration by the
Respondent that the conditions set forth in Part II.B.2.b of the Permit were
satisfied, in violation of 327 IAC 5-2-8(1), Part II.A.1 of the Permit, and
Part II.B.2.b of the Permit.
28. Pursuant to Part III.A.1 of the Permit, the Respondent was
required to:
a.
within six months from the effective date of the
Permit, modify its Municipal Sewer Use Ordinance (SUO) to obtain the legal
authority to implement hybrid pretreatment program requirements; and
b.
within two months from the
effective date of the Permit, submit proposed revisions to its SUO to IDEM.
29.
An inspection conducted by a representative of IDEM
on
30.
Pursuant to Part III.A.2 of the Permit, the
Respondent is required to submit an annual report regarding implementation of
its hybrid pretreatment program to IDEM by April 1 of each year.
31.
A review of IDEM records indicates that, as of
December 1, 2002, the Respondent has not submitted the annual reports due to be
submitted by April 1, 2000, April 1, 2001, and April 1, 2002, in violation of
327 IAC 5-2-8(1), Part II.A.1 of the Permit, and Part III.A.2 of the Permit.
32.
Pursuant to Part I of Attachment A of the Permit, dry
weather discharges from any portion of the Publicly Owned Treatment Works
(POTW) are prohibited, except in accordance with 327 IAC 5-2-8(11)(B) and 40
CFR 122.41(m).
33.
A review of IDEM records and/or records maintained by
the Respondent revealed that, on multiple days between January 2000 and
September of 2002, dry weather discharges from Outfall 101 and combined sewer overflow
outfalls identified in Attachment A of the Permit occurred, without a
demonstration by the Respondent that such discharges were in accordance with
327 IAC 5-2-8(11) and 40 CFR 122.41(m), in violation of 327 IAC 5-2-2, 327 IAC
5-2-8(1), Part II.A.1 of the Permit, and Part I of Attachment A of the Permit.
34.
Pursuant to Part III of Attachment A of the Permit,
the Respondent was required to submit, within three months of the effective
date of the Permit, a protocol for characterizing the impacts of discharges
from its combined sewer overflow outfalls upon the receiving stream(s).
35.
A review of IDEM records indicates that, as of
36.
Pursuant to Part V.A of Attachment of the Permit, the
Respondent is required to maintain a current Operational Plan, updated to
reflect system modifications, on file at the permitted facility.
37.
An inspection conducted by a representative of IDEM
on December 12, 2001, and subsequent inquiries, revealed that a copy of
Elwood’s CSO Operational Plan was not present at the permitted facility, in
violation of 327 IAC 5-2-8(1), Part II.A.1 of the Permit, and Part V.A of
Attachment A of the Permit.
38.
Pursuant to Part V.B of Attachment A of the Permit,
the Respondent is required, during wet weather flow conditions, to maximize the
flows transported to the wastewater treatment facility for treatment consistent
with the effluent limits specified in the Permit, prior to overflows being
authorized.
39.
A review of IDEM records and/or records maintained by
the Respondent revealed that on multiple days between January 2000 and December
2001, the Respondent failed to maximize flows transported to the wastewater
treatment facility, prior to the occurrence of overflows from combined sewer
overflow outfalls, in violation of 327 IAC 5-2-2, 327 IAC 5-2-8(1), Part II.A.1
of the Permit, and Part V.B of Attachment A of the Permit.
40.
Pursuant to Part V.C of Attachment of the Permit, the
Respondent was required to submit, within three months from the effective date
of the Permit, updates of its CSO Operational Plan to include requirements for
pollution prevention (seventh minimum control from Indiana's Final CSO
Strategy), and requirements for public notification (eighth minimum control
from Indiana's Final CSO Strategy).
41.
A review of IDEM records indicates that, as of
42.
Pursuant to 327 IAC
43.
An investigation by a representative of IDEM revealed
that the Respondent initiated construction of the Callaway sanitary sewer
extension project on or before November 2001, without a construction permit
issued by IDEM, in violation of 327 IAC
44.
In recognition of the settlement reached, the
Respondent waives any right to administrative and judicial review of this
Agreed 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 327 IAC
3.
The Respondent shall monitor E. coli, CBOD, TSS, and
ammonia-nitrogen as required by the Permit.
4.
Within 60 days of the Effective Date, the Respondent
shall ensure that samples taken to satisfy the Permit monitoring requirements applicable to the discharge
from Outfall 001 are obtained from a location downstream of the junction box
where flow from Outfall 101 rejoins the tertiary effluent.
5.
The Respondent shall obtain composite samples for
CBOD, TSS, and ammonia nitrogen, as required by the Permit. Additionally, the Respondent shall maintain,
and make available for inspection by IDEM, records documenting that composite
samples were obtained as required.
6.
The Respondent shall be subject to the stipulated
penalties set forth in Order Paragraph 35 below for the failure to initiate,
within 120 days of the Effective Date of this Agreed Order, a series of
bioassay tests to monitor the toxicity of the discharge from Outfall 001. The Respondent shall conduct the bioassay
tests in accordance with the requirements of Part I.D of the Permit, and shall
report the results to IDEM in the manner and the timeframe(s) specified
therein.
7.
The Respondent shall be subject to the stipulated
penalties set forth in Order Paragraph 35 below for the failure to comply with
the following requirements:
a.
Within 30 days of the Effective Date of this Agreed
Order, review its SUO to determine whether it has the legal authority described
in Part III.A.1 of the Permit.
b.
In the event that the Respondent determines that it
has the legal authority described in Part III.A.1 of the Permit, the Respondent
shall, with 45 days of the Effective Date of this Agreed Order, submit to IDEM
a statement certifying that it has the legal authority described in Part
III.A.1 of the Permit.
c.
In the event that the Respondent determines that it
does not have the legal authority described in Part III.A.1 of the Permit, the
Respondent shall, within 90 days of the Effective Date of this Agreed Order,
prepare and submit to IDEM for approval, proposed revisions to its SUO, as
necessary to acquire the legal authority described in Part III.A.1 of the
Permit. In the event that IDEM finds the
proposed revisions to be deficient, the Respondent shall correct the deficiencies
and resubmit the proposed revisions to IDEM, within the timeframe specified by
IDEM.
d.
Within 60 days of receipt of IDEM approval of the
proposed revisions, the Respondent shall revise its SUO to incorporate the
approved proposed revisions.
8.
The Respondent shall submit annual reports regarding
implementation of its hybrid pretreatment program to IDEM by April 1 of each
year.
9.
The Respondent shall report the volume of flow
discharged from each CSO outfall on the CSO Discharge Monitoring Report Form. The Respondent shall, within 90 days of the
Effective Date of this Agreed Order, develop and submit to IDEM for approval a
plan and schedule for determining and recording the volume of flow discharged
from each CSO outfall. Except as
specified below, the plan shall provide for the installation and utilization,
at each CSO outfall, of a flow measurement device, along with a continuous
chart recorder or electronic/computer recorder, in order to measure and record
the volume of flow discharged from each CSO outfall. In lieu of determining and recording the
volume of flow discharged from each CSO outfall through use of a flow
measurement device and recorder, the Respondent may propose, in the plan, use
of a sewer collection system hydraulics model.
Such proposal shall provide for installation and utilization of flow
measurement devices and recorders at representative CSO outfalls, as well as
activation data for all non-metered outfalls.
IDEM will only approve such a proposal if: (a) IDEM determines that the
model is properly calibrated and verified, (b) the Respondent continues to
monitor selected outfalls that IDEM agrees are likely to provide representative
data, (c) the Respondent has an appropriate plan for continued verification and
calibration of the model that incorporates actual outfall monitoring data and
addresses significant changes in the collection system or treatment plant and
the amount of flow entering the collection system or plant, and (d) the
Respondent either visually inspects or monitors all CSO outfalls daily to
determine whether a discharge has occurred and records the results of such
visual inspections or monitoring.
10.
The Respondent shall ensure that a copy of its
approved Combined Sewer Operational Plan (CSOP), including any amendments
thereto, is present at the WWTP and available for review and copying by IDEM
representatives upon request.
11.
The Respondent shall be subject to the stipulated
penalties set forth in Order Paragraph 35 below for the failure to submit to
IDEM, for approval, by
a.
Proper operation and regular maintenance of the collection
system and the CSO outfall structures;
b.
Maximization of the use of the collection system for
storage;
c.
Review and modification of the pretreatment program,
as necessary to ensure that CSO impacts are minimized;
d.
Maximization of flow to and through the WWTP for
treatment prior to and during any CSO discharges;
e.
Prohibition of CSO discharges during dry weather;
f.
Control of solid and floatable materials in CSO
discharges;
g.
Implementation of a pollution prevention program that
focuses on contaminant reduction activities; and
h.
Public notification to ensure that the public
receives adequate notification of CSO occurrences and CSO impacts.
12.
The Respondent shall maximize the volume of flow
transported to and through its wastewater treatment plant prior to and during
any discharge from any CSO outfall.
Beginning of the Effective Date of this Agreed Order and continuing until the
Respondent has received IDEM approval of the revised CSOP submitted by the
Respondent pursuant to Order Paragraph 11, the Respondent shall be subject to
the stipulated penalties set forth in Order Paragraph 35 for the failure to
achieve, prior to or during a CSO discharge, a flow rate of at least 11 mgd into the Equalization Basin and a flow rate of 3.2 mgd from the Equalization Basin, through the remainder of
the WWTP.
Upon receiving IDEM approval of the revised CSOP submitted by the Respondent
pursuant to Order Paragraph 11, the Respondent shall be subject to the
stipulated penalties set forth in Order Paragraph 35 for the failure to achieve,
prior to or during a CSO discharge, the flow rates into and from the
Equalization Basin that are specified in the approved, revised CSO Operational
Plan.
13.
Within 30 days of the Effective Date of this Agreed
Order, the Respondent shall develop and submit to IDEM for approval an
“Effluent Limitation Compliance Plan” that identifies the actions that the
Respondent will take to achieve and maintain compliance with:
a.
the numeric effluent limitations contained in the Permit,
including those for Total Suspended Solids and E. coli; and
b.
the narrative effluent limitations contained in the
Permit, including the prohibition against the discharge from Outfall 001
containing substances, materials, floating debris, and/or scum in an amount
sufficient to be unsightly.
The Effluent Limitation Compliance Plan shall include
an implementation and completion schedule, including specific milestone dates.
14.
The Respondent shall, upon completion of the Effluent
Limitation Compliance Plan, be subject to the stipulated penalties set forth in
Order Paragraph 35 for the failure to comply with the numeric or narrative
effluent limitations contained in the Permit.
15.
The Respondent shall, within 6 months of completion
of the Effluent Limitation Compliance Plan required by Order Paragraph 13 above
(Performance Period), demonstrate 6 consecutive months of compliance
(Compliance Demonstration) with the numeric and narrative effluent limitations,
contained in the Permit. In the event
that the Respondent fails to make the Compliance Demonstration, the Respondent
shall, within 60 days of becoming aware that the Compliance Demonstration
cannot be achieved, develop and submit to IDEM, for approval, an “Effluent
Limitation Action Plan” that identifies the additional actions that Respondent
will take to achieve and maintain compliance with the numeric and narrative
effluent limitations contained in the Permit.
The Effluent Limitation Action Plan shall include an implementation and
completion schedule, including specific milestone dates.
16.
The Respondent shall, by June 30, 2005, develop and
submit to IDEM for approval a “Dry Weather CSO Elimination Plan” that
identifies the actions the Respondent will take to eliminate dry weather
discharges from any CSO outfalls present in the collection system, including
the actions that the Respondent will take to identify and remove sources of
infiltration into the collection system.
The Dry Weather CSO Elimination Plan shall contain an implementation and
completion schedule, including specific milestone dates.
17.
The Respondent shall, upon completion of the Dry
Weather CSO Elimination Plan, be subject to the stipulated penalties set forth
in Order Paragraph 35, for dry weather discharges from any of the CSO outfalls
present in the collection system.
18.
The Respondent shall, within 6 months of completion
of implementation of the Dry Weather CSO Elimination Plan required b Order
Paragraph 16 above (Performance Period), demonstrate for a period of 6
consecutive months (Compliance Demonstration) that dry weather discharges from
CSO outfalls present in the collection system do not occur. In the event that the Respondent fails to
make the Compliance Demonstration, the Respondent shall, within 60 days of
becoming aware that the Compliance Demonstration cannot be achieved, develop
and submit to IDEM, for approval, a “Dry Weather CSO Elimination Action Plan”
that identifies the additional actions that the Respondent will take to
eliminate dry weather discharges from CSO outfalls present in the collection
system. The Dry Weather CSO Elimination
Action Plan shall include an implementation and completion schedule, including
specific milestone dates.
19.
The requirements set forth in this paragraph, and in
Order Paragraph 20, apply only in the event that IDEM determines that the Long
Term Combined Sewer Overflow Control Plan submitted by the Respondent pursuant
to Order Paragraph 21 below is deficient, and notifies the Respondent, in
writing, that is it necessary for the Respondent to conduct a Stream Reach
Characterization and Evaluation Study in order to sufficiently address such
deficiency.
The Respondent shall be subject to the stipulated penalties set forth in Order
Paragraph 35 for the failure to submit to IDEM, for approval, within 30 days of
receipt of written notice from IDEM, a protocol, including a schedule with
specific milestone dates, for conducting a Stream Reach Characterization and
Evaluation Study, for the purpose of characterizing the impacts of the
Respondent’s CSO discharges on Duck Creek and Little Duck Creek. In addition to
any requirements contained in the Permit, the protocol shall provide for the
following:
a.
Monitoring of discharges from each CSO outfall
present in the collection system for a range of precipitation events. Monitoring shall be conducted by the
collection of grab samples during the precipitation event and well as
subsequent to the precipitation event.
Monitoring shall, at a minimum, be conducted for the following: flow,
all pollutants listed in Part I.A.1 of the Permit, and any pollutant that may
be present the discharge of an industrial user discharging into the collection
system at a location upstream of a CSO outfall; and
b.
Monitoring of Duck Creek and Little Duck Creek, upstream
and downstream of each CSO outfall, during dry and wet weather conditions
(including a range of precipitation events), and prior to, during, and
subsequent to CSO discharge events.
Monitoring shall, at a minimum, be conducted for the following: stream
flow, all pollutants listed in Part I.A.1 of the Permit, and any pollutant that
may be present in the discharge of an industrial user discharging into the
collection system at a location upstream of a CSO outfall.
20.
The Respondent shall, within 6 months of receiving
IDEM approval of the protocol submitted pursuant to Order Paragraph 19 above,
submit to IDEM, for approval, a Stream Reach Characterization and Evaluation
Report (SRCER) that summarizes the Stream Reach Characterization and Evaluation
Study. In addition to any information
described in the Permit, the SRCER shall include the following:
a.
A description of the protocol that was used to
conduct the Stream Reach Characterization and Evaluation Study;
b.
A listing of precipitation events that occurred
during the study period, including the amount and duration of each
precipitation event;
c.
A listing of all CSO discharge events that occurred
during the study period, including the date, time, volume and duration of each
discharge event.
d.
The results of the CSO discharge monitoring conducted
during the study;
e.
A description of the water quality characteristics of
Duck Creek and Little Duck Creek, including the results of the monitoring of
these receiving waters conducted during the study; and
f.
A description of the impacts of the CSO discharges on
the water quality of the receiving water(s) during the study period.
In the event that IDEM deems the Respondent’s SRCER
to be inadequate, the Respondent shall, upon receiving written notice from IDEM
of the inadequacies, revise and/or supplement the SRCER to correct the noted
inadequacies and resubmit the SRCER to IDEM within the timeframe specified by
IDEM.
21.
The Respondent shall develop and submit to IDEM, for
approval, by
a.
the actions that the Respondent will take to ensure
that discharges from all of the Respondent’s CSO outfalls comply with the
technology based and water quality based requirements of the CWA, state law,
and federal and state regulations; and
b.
the actions that the Respondent will take to
eliminate bypasses from Outfall 101 to the maximum extent feasible, in
accordance with 327 IAC 5-2-8(11), and to ensure that any remaining discharges
satisfy the conditions of the Permit, including applicable narrative and
numeric effluent limitations.
In addition to any information specified in the
Permit, the LTCP (and its development) shall consist of, but not necessarily be
limited to the following elements:
a.
Characterization, Monitoring and Modeling - The Respondent shall
characterize, monitor, and model its wastewater collection system, and shall
use the resulting data to (1) ensure the effective and efficient operation of
the wastewater collection system and (2) aid in the selection of the long term
CSO controls. The Respondent shall
document, in the LTCP, the characterization, monitoring, and modeling of the
wastewater collection system conducted by the Respondent, the resulting data,
and the manner in which the data was utilized by the Respondent to ensure the
effective and efficient operation of the wastewater collection system and to
select long term CSO controls. Due to
the Respondent’s status as a “small community” for purposes of LTCP
development, the modeling conducted by the Respondent may be less detailed than
that of a community that is not designated as a “small community” for purposes
of LTCP development.
b.
Public Participation – The Respondent shall
seek, obtain, and utilize input from the public throughout the development of
the LTCP. The Respondent shall document,
in the LTCP, its efforts to seek, obtain, and utilize input from the public
during the LTCP development.
c.
Sensitive Areas - The Respondent shall
conduct an evaluation to identify sensitive areas. The LTCP shall include a description of the
evaluation that was conducted in order to identify sensitive areas and a
listing of the sensitive areas.
Additionally, the Respondent shall give highest priority to sensitive
areas with respect to the selection and implementation of CSO controls.
d.
Evaluation of Alternatives - The Respondent shall
develop and evaluate control alternatives for eliminating or treating CSO
discharges such that compliance with the technology based and water quality
based requirements of the Clean Water Act, state law, and federal and state
regulation is achieved. The LTCP shall include a detailed description of each
control alternative. Additionally, the
LTCP shall identify the control alternative being proposed by the Respondent,
and justification for the proposed control alternative, including the reasons
that proposed alternative is considered by the Respondent to be preferable to
the other evaluated control alternatives.
e.
Cost/Performance Considerations – The LTCP shall include a
detailed description, along with supporting documentation, of the estimated,
itemized cost as well as the anticipated performance of each CSO control
alternative evaluated by the Respondent with respect to the impact that the CSO
control alternative is expected to have on the frequency, volume, duration, and
quality of the Respondent’s CSO discharge(s) and the expected impact on the
water quality of the receiving water.
f.
Operational Plan – The LTCP shall include a
schedule for revising the Operational Plan to reflect implementation of the
approved CSO controls.
g.
Maximizing Treatment at the WWTP - The LTCP shall include
documentation that the Respondent has maximized the volume of treated flow at
its WWTP or, to the extent that treated flow has not been maximized, the LTCP
shall include proposed CSO controls that provide for the maximization of
treated flow at the WWTP, along with documentation necessary to support the
proposed CSO controls.
h.
Implementation Schedule - The LTCP shall include
an implementation schedule which includes specific milestone dates for the
design, construction, and implementation of the selected CSO controls as well
as the bypass elimination measures proposed by the Respondent. The implementation schedule shall provide for
the elimination of overflows that discharge to sensitive areas as the highest
priority. The implementation schedule
shall also take into consideration the Respondent’s financial capability. The Respondent’s financial capability shall
be evaluated by consideration of factors that include the following:
i.
The median household income;
ii.
Total annual wastewater and CSO control costs per
household as a percent of the median household income;
iii.
Overall net debt as a percent of full market property
value;
iv.
The property tax revenues as a percent of full market
property value;
v.
The property tax collection rate;
vi.
The unemployment rate;
vii.
The Respondent’s bond rating.
viii.
Sources of funding, including grants and loans;
ix.
Previous and current residential, commercial, and
industrial sewer user fees and rate structures.
i.
Post-Construction Compliance Monitoring - The LTCP
shall provide for a process by which the Respondent will evaluate the
effectiveness of the selected CSO Controls (after their implementation), and
their adequacy in achieving compliance with the technology based and water
quality based requirements of the CWA, state law, and federal and state
regulations.
22.
In the event that data resulting from the post
construction compliance monitoring program, or other information indicates that
the actions taken in accordance with the portion of the LTCP required pursuant
to Order Paragraph 21.a are not adequate to ensure compliance with the
technology based and water quality based requirements of the CWA, state law, and/or
federal and/or state regulations, the Respondent shall, within 90 days of
becoming aware of such inadequacy, develop and submit to IDEM, for approval, a
Supplemental LTCP that identifies:
a.
the additional actions that will be taken by the
Respondent in order to ensure compliance with the technology based and water
quality based requirements of the CWA, state law, and federal and state
regulations, along with a schedule, that includes specific milestone dates, for
implementation of the additional control/treatment measures; and
b.
the post construction compliance monitoring program
that will be implemented by the Respondent in order to determine whether the
additional actions, upon implementation, are adequate to ensure compliance with
the technology based and water quality based requirements of the CWA, state
law, and federal and state regulations, along with a schedule, that includes
specific milestone dates, for implementation of the post construction
compliance monitoring.
23.
The Respondent shall, upon completion of
implementation of the portion of the LTCP required pursuant to Order Paragraph
21.b, be subject to the stipulated penalties set forth in Order Paragraph 35
for the occurrence of bypasses from Outfall 101.
24.
The Respondent shall, within 6 months of completion
of implementation of the portion of the LTCP required pursuant to Order
Paragraph 21.b (Performance Period), demonstrate for a period of 6 consecutive
months (Compliance Demonstration) that bypasses from Outfall 101 do not occur. In the event that the Respondent fails to
make the Compliance Demonstration, the Respondent shall, within 60 days of
becoming aware that the Compliance Demonstration cannot be achieved, develop
and submit to IDEM, for approval, a “Bypass Elimination Plan” that identifies
the additional actions that the Respondent will take to eliminate bypasses from
Outfall 101. The Bypass Elimination Plan
shall include an implementation and completion schedule, including specific
milestone dates.
25.
The Respondent shall not issue a construction permit
for a sanitary sewer, shall not issue a capacity certification pursuant to 327
IAC 3-6-7 or 327 IAC 3-6-4, and shall not cause or allow the construction of
any sanitary sewer without written approval by IDEM.
26.
Within 120 days of the Effective Date of this Agreed
Order, the Respondent shall submit to IDEM, for approval, a plan, including a
schedule, to bring the Callaway sanitary sewer extension project into
compliance with the requirements of 327 IAC 3.
The schedule shall include specific milestone dates for the submittal of
a construction permit application, including plans and specifications, and for
the initiation and completion of construction.
27.
The plans required pursuant to Order Paragraphs 9,
11, 13, 15, 16, 18, 21, 22, 24, and 26 and the protocol required pursuant to
Order Paragraph 19, shall be subject to the approval of IDEM. If IDEM deems a plan or protocol to be
inadequate, a revised plan or protocol shall be submitted within 15 days of
receipt of notice from IDEM of the inadequacies thereof. If, after submission of the first revised
plan or protocol, IDEM still finds the plan or protocol to be inadequate, then
IDEM will request further modification of the plan or protocol as necessary to
meet IDEM’s requirements, and require re-submittal of the plan or protocol by a
specific date. If the subsequently
submitted second revised plan or protocol does not meet IDEM’s approval, IDEM
will suggest specific modifications to be made to the plan or protocol and
require re-submittal by a specific date.
If, by the specified date, the Respondent does not submit a third
revised plan or protocol that incorporates the IDEM-suggested modifications or
submit an alternative adequate plan or protocol (as determined by IDEM), the
IDEM-suggested modifications will be deemed incorporated into the plan or
protocol.
28.
The plans required pursuant to Order Paragraphs 9,
11, 13, 15, 16, 18, 21, 22, 24, and 26 and the protocol required pursuant to
Order Paragraph 19 shall, upon approval by IDEM, be incorporated into the
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 or protocol,
and adhere to the milestone dates contained therein.
29.
The Respondent shall notify IDEM, in writing, within
10 days of completion of each action contained in any approved plan or
protocol. The notification shall include
a description of the action completed and the date it was completed.
30.
All submittals required by this Agreed Order, unless
notified otherwise in writing, shall be sent to:
Terry Ressler, Case
Manager, Water Enforcement Section
Office of Enforcement, IGCN, Rm. 1315
Indiana Department of Environmental Management
31.
Respondent is assessed a Civil Penalty of Eighty
Thousand Eight Hundred and Fifty Dollars ($80,850). A portion of said penalty amount, totaling
Sixteen Thousand One Hundred and Seventy Dollars ($16,170) shall be due and
payable to the Environmental Management Special Fund as follows: within 30 days of the Effective Date the
Respondent shall pay Four Thousand and Fifty Dollars ($4,050); within 120 days
of the Effective Date the Respondent shall pay Four Thousand and Forty Dollars
($4,040); within 210 days the Respondent shall pay Four Thousand and Forty
Dollars ($4,040); and within 300 days the Respondent shall pay Four Thousand
and Forty Dollars ($4,040). In lieu of
payment of the remaining portion of the Civil Penalty, totaling Sixty-Four
Thousand Six Hundred and Eighty Dollars ($64,680), the Respondent shall perform
a Supplemental Environmental Project (SEP), as described below.
32.
The Respondent has elected to perform a SEP consisting
of the Respondent contributing funds to be applied toward a project to provide
water and sanitary sewer service to two presently unsewered
residential areas located outside of the City of Elwood’s city limits known as
the Wilburn and Yarling housing additions. An offset ratio of 2:1 will be applied to
this SEP, i.e. the Respondent must expend two dollars in order to offset one
dollar of the civil penalty. Therefore, the Respondent must expend a minimum of
One Hundred Twenty-Nine Thousand Three Hundred and Sixty Dollars ($129,360) in
order to offset the remainder of the civil penalty totaling Sixty-Four Thousand
Six Hundred and Eighty Dollars ($64,680).
The Respondent anticipates contributing at least One Hundred Forty-Two
Thousand Dollars ($142,000) toward the aforementioned project.
33.
The Respondent shall complete the SEP by no later
than
34.
In the event that the Respondent fails to complete
the SEP by no later than December 31, 2007, the Respondent shall pay the entire
balance of the civil penalty, totaling Sixty-Four Thousand Six Hundred and
Eighty Dollars ($64,680), plus interest at the rate established by IC
24-4.6-1-101. Interest on the balance of
the civil penalty shall be paid from the Effective Date of this Agreed
Order. Payment shall be made to the
Environmental Management Special Fund, within 15 days of receipt of notice from
IDEM that payment is due.
35.
In the event the following terms and conditions of
the following 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 monitor E. coli, CBOD, TSS, and ammonia nitrogen at least as frequently as
required by the Permit |
$500
per violation |
|
4 |
Failure
to collect Outfall 001 samples from a location downstream of the junction box
where flow from Outfall 101 rejoins the tertiary effluent |
$500
per violation |
|
5 |
Failure
to obtain composite samples for CBOD, TSS, and ammonia nitrogen, as required
by the Permit |
$500
per violation |
|
5 |
Failure
to maintain, and make available for inspection by IDEM, records documenting that
composite samples were obtained as required |
$500
per violation |
|
6 |
Failure
to initiate bioassay test within the required timeframe |
$250
per week late |
|
6 |
Failure
to conduct the bioassay tests in accordance with the requirements of Part I.D
of the Permit or to report the results to IDEM in the manner and the
timeframe specified therein |
$500
per violation |
|
7 |
Failure
to comply with any completion date set forth in or provided for by Order
Paragraph 7 |
$250
per week late |
|
8 |
Failure
to timely submit hybrid pretreatment program annual report |
$250
per week late |
|
9 |
Failure
to develop and submit to IDEM for approval, a plan to install and begin
utilization of a flow measurement device and a continuous chart record at
each CSO outfall, or an alternative hydraulics model for reporting the
duration and volume of discharge, within the required timeframe |
$250
per week late. |
|
10 |
Failure
to have the CSOP present at the WWTP or available for review and copying by IDEM
representatives upon request |
$250
per violation |
|
11 |
Failure
to submit a revised CSOP within the required timeframe |
$250
per week late |
|
13 |
Failure
to submit the Effluent Limitation Compliance Plan within the required
timeframe |
$250
per week late |
|
14 |
Failure
to comply with the numeric or narrative effluent limitations contained in the
Permit subsequent to completion of the Effluent Limitation Compliance Plan |
$5000
per violation |
|
15 |
Failure
to submit the Effluent Limitation Action Plan within the required timeframe |
$250
per week late |
|
16 |
Failure
to submit the Dry Weather CSO Elimination Plan within the require timeframe |
$250
per week late |
|
17 |
Dry
weather discharges any CSO outfalls present in the collection system
subsequent to the completion of the Dry Weather CSO Elimination Plan |
$5000
per discharge event |
|
18 |
Failure
to submit the Dry Weather CSO Elimination Action Plan within the required timeframe |
$250
per week late |
|
19 |
Failure
to submit the protocol within the required timeframe |
$250
per week late |
|
20 |
Failure
to submit or revise and resubmit the SRCER within the required timeframe |
$250
per week late |
|
21 |
Failure
to submit the LTCP within the required timeframe |
$250
per week late |
|
22 |
Failure
to timely submit Supplemental LTCP |
$250
per week late |
|
23 |
Bypasses
from Outfall 101 subsequent to the implementation of the portion of the LTCP required
pursuant to Order Paragraph 21.b |
$5000
per discharge event |
|
24 |
Failure
to submit the Bypass Elimination Action Plan within the required timeframe |
$250
per week late |
|
26 |
Failure
to submit the plan for the reconstruction of the Callaway sanitary sewer
extension project within the required timeframe |
$250
per week late |
|
27 |
Failure
to revise and resubmit a plan or protocol within the required timeframe |
$250
per week late |
|
28 |
Failure
to meet any milestone date contained in any approved plan or protocol |
$1000
per week late |
|
29 |
Failure
to notify IDEM of the completion of any action contained in any approved plan
or protocol within the required timeframe |
$100
per week late |
36.
Stipulated penalties shall be due and payable within
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 any of the
stipulated penalties given above, the Complainant may seek any other remedies
or sanctions available by virtue of Respondent's violation of this Agreed
Order, Indiana law, or Respondent’s NPDES Permit, including, but not limited
to, civil penalties pursuant to IC 13-30-4.
37.
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
38.
In the event that the civil penalty required by Order
Paragraph 31 is not paid, and/or offset in accordance with the timeframes
established in Order Paragraphs 31, 33, and 34, 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.
39.
“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 the 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
calendar days and by writing no later than seven 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 the 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.
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.
40.
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.
41.
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.
42.
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.
43.
This Agreed Order is not and shall not be interpreted
to be a Permit, nor shall it in any way relieve Respondent of its obligation to
comply with the applicable requirements of federal or state law or regulation.
44.
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.
45.
This Agreed Order shall remain in effect until the
Respondent has complied with all terms and conditions of Paragraphs 3 through
39 of this Order and IDEM issues a “close out” letter to the Respondent.
|
TECHNICAL
RECOMMENDATION: |
RESPONDENT: |
||
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Department
of Environmental Management |
City
of |
||
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By:
|
____________________________ |
By: |
_____________________________ |
|
|
Mark
W. Stanifer, Chief |
Printed: |
_____________________________ |
|
|
Water
Enforcement Section |
Title: |
_____________________________ |
|
|
Office
of Enforcement |
|
|
|
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
on
Linda
Runkle
Assistant
Commissioner