Agreed Order

STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT OF

) SS: ENVIRONMENTAL MANAGEMENT

COUNTY OF MARION )

COMMISSIONER OF THE DEPARTMENT )

OF ENVIRONMENTAL MANAGEMENT, )

)

Complainant, )

) CASE NO. 2002-12220-W

v. )

)

TOWN OF DANVILLE )

)

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. Respondent's entry into this Agreed Order shall not constitute a waiver of any defense, legal or equitable, which Respondent may have in any future administrative or judicial proceeding except a proceeding to enforce this 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 Danville ("Respondent"), owns and operates a 100% sanitary sewer collection system (hereinafter referred to as the "collection system"), and a Class II, 1 MGD, wastewater treatment plant. The facility is authorized by NPDES Permit No. IN 0020079 to discharge to receiving waters named the West Fork of White Lick Creek in accordance with stated effluent limitations, monitoring requirements, and other conditions. The collection system and wastewater treatment plant are located in Hendricks County, Indiana.

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

4. Pursuant to IC 13-30-3-3, on December 18, 2002, IDEM issued a Notice of Violation via Certified Mail to:

Mr. Dave Odle, President

Town Council of Danville

77 North Kentucky

P.O. Box 405

Danville, IN 46122

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 or would violate rules, standards, or discharge or emission requirements adopted by the appropriate board under IC 13.
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.
IDEM records for the period between January 1, 2000 and September 16, 2002 indicate that the Respondent reported the occurrence of discharges of untreated sewage from various locations in its collection system to waters of the state on multiple occasions in 2000, 2001, and 2002, without a valid NPDES Permit for the discharges, in violation of IC 13-30-2-1 and 327 IAC 5-2-2.
Pursuant to 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 or would violate rules, standards, or discharge or emission requirements adopted by the appropriate board under IC 13.
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 IC 13-18-4-1 and IC 13-18-4-3.
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, or other land use practices, or other discharges:

that will settle to form putrescent or otherwise objectionable deposits;
that are in amounts sufficient to be unsightly or deleterious;
that produce color, visible oil sheen, odor, or other conditions in such degree as to create a nuisance;
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
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.

IDEM records indicate that on or about September 16, 2002 approximately 50,000

gallons of untreated sewage was discharged from the Respondent's collection system into the West Fork of White Lick Creek, resulting in a fish kill. The discharge of untreated sewage in an amount sufficient to be deleterious and/or in an amount 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)(1), IC 13-18-4-5 and IC 13-30-2-1.

Pursuant to 327 IAC 5-2-8(1) and Part II.A.1 of the Permit, the Respondent is required to comply with all terms and conditions of the Permit.
Pursuant to 327 IAC 5-2-8(8) and Part II.B.1 of the Permit, the Respondent is required to maintain in good working order and efficiently operate all waste collection, control, treatment, and disposal facilities.
IDEM records for the period between January 1, 2000 and September 16, 2002 indicate that the Respondent reported the occurrence of discharges of untreated sewage from various locations in its collection system system attributable to precipitation, blockages in the collection system, or lift station failure, which indicates a failure by the Respondent to maintain its collection system in good working order, in violation of 327 IAC 5-2-8(1), Part II.A.1 of the Permit, 327 IAC 5-2-8(8), and Part II.B.1 of the Permit.
An enforcement meeting was held on January 27, 2003, at which the Respondent indicated that the discharge of untreated sewage that occurred on or about September 16, 2002 was attributable to a lift station malfunction caused by a substantial volume of untreatable materials, including food packaging, clothing, bedding items and other trash, that was deposited in the Respondent's sanitary sewer collection system by inmates of the Hendricks County Jail. The Respondent contends that these actions took place without the knowledge of the Respondent, and were in violation of the Respondent's sewer use ordinance. The Respondent subsequently advised IDEM that appropriate action has been taken to require the installation of pretreatment devices at the jail to minimize the potential for future interference at this lift station.
In recognition of the settlement reached, Respondent waives any right to administrative and judicial review of this Agreed Order.

II. Order

This Agreed Order shall be effective ("Effective Date") when it is approved by the Complainant or her delegate and has been received by the Respondent. This Agreed Order shall have no force or effect until the Effective Date.

In the event that a discharge from any portion of the Respondent’s collection system, including any lift station or manhole, occurs, the Respondent shall:

take all reasonable actions to cease the discharge as soon as possible;
properly clean the affected area;
remove and properly dispose of sewage and debris from the affected area;
report the discharge event as follows:

Within 24 hours of the Respondent becoming aware of the discharge, the Respondent shall provide facsimile notification of the event to IDEM, at 317/232-8637 or 317/232-8406;
Within five days of the Respondent becoming aware of the discharge, the Respondent shall submit written notification of the event to IDEM. The notification shall include the following information: the cause of the discharge; the duration of the discharge, including exact dates and times, and if the discharge has not ceased, the anticipated time it is expected to continue; the remedial actions that have been or that will be taken to cease the discharge; and the actions that have been or that will be taken to prevent reoccurrence of the discharge.

document all actions taken to cease the discharge and to remediate the affected areas, retain copies of the documentation, and allow IDEM representatives to inspect and copy these records upon request.

Within 90 days of the Effective Date of this Agreed Order, the Respondent shall develop and submit to IDEM, for approval, a compliance plan (CP) that includes the following:

Actions that the Respondent will take to eliminate discharges from its collection system, including all lift stations and manholes;
Actions that the Respondent will take to ensure that its collection system is at all times efficiently operated and maintained in good working order. This portion of the CP must include, but not necessarily be limited to, the elements identified in Attachment A, which is hereby incorporated into this Agreed Order and deemed an enforceable part thereof;
Actions that the Respondent will take to achieve and maintain compliance with the effluent limitations applicable to the discharge from Outfall 001; and
An implementation and completion schedule, including specific milestone dates, for the actions required pursuant to items a and b above.

Upon completion of the portion of the CP required pursuant to Order Paragraph 3a above, the Respondent shall be subject to the stipulated penalties provided for in Order Paragraph 13 below for any discharge from the collection system, including any discharge from any lift station or manhole.

5. The Respondent shall, within 12 months of the completion of the portion of the

CP required pursuant to Order Paragraph 3a above ("Performance Period"), demonstrate for a period of 12 consecutive months that discharges from the collection system, including all lift stations and manholes, do not occur. In the event that a discharge from the collection system, including any lift station or manhole, occurs during the Performance Period, the Respondent shall, within 60 days of the occurrence of the discharge, develop and submit to IDEM, for approval, a plan ("action plan") that identifies the additional actions that the Respondent will take to eliminate discharges from the collection system, including all lift stations and manholes. The action plan shall include an implementation and completion schedule, including specific milestone dates.

6. The plans required pursuant to Order Paragraphs 3 and 5 above shall be subject

to the approval of IDEM. If IDEM deems a plan to be inadequate, a revised plan shall be submitted within 30 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 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 and adhere to the milestone dates contained therein.

8. The Respondent shall notify IDEM, in writing, within 15 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. Within 30 days of the Effective Date of this Agreed Order, the Respondent shall determine whether it has sufficient legal authority to:

Implement and enforce its sewer use ordinance, service agreements and/or other legally binding documents;
Require that all sewer and connections be properly designed and constructed;
Test and inspect all new and rehabilitated sewers, including both collector sewers and service laterals;
Regulate flows from satellite collection systems (if any); and
Prohibit the connection or introduction of stormwater sources to the collection system.

10. In the event that the Respondent determines that it does not have such sufficient legal authority described in Order Paragraph 9 above, the Respondent shall, as expeditiously as possible, but no later than 120 days after the Effective Date of this Agreed Order, take all necessary steps to obtain such legal authority.

11. Within 120 days of the Effective Date of this Agreed Order, the Respondent shall

submit to IDEM a statement certifying that it has the legal authority described in Order Paragraph 10 above.

12. All submittals required by this Agreed Order, unless specified 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

13. In the event that any of the 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:

Paragraph Number	Violation	Penalty Amount
2	Failure to take all reasonable actions to cease bypassing as soon as possible; properly clean the affected area; remove and properly dispose of sewage from the affected area; report the discharge event to IDEM; or document action taken to cease the bypass	$500 per violation
3	Failure to timely submit CP	$250 per each week or part thereof late
4	Discharge from the collection system, including any lift station or manhole, on and after the date of completion of the portion of the CP required pursuant to Order Paragraph 3a above	$2000 per discharge event
5	Failure to timely submit action plan, if required	$250 per each week or part thereof late
6	Failure to timely revise and resubmit any plan, if required	$250 per each week or part thereof late
7	Failure to comply with any milestone date contained in any approved plan	$500 per each week or part thereof late
8	Failure to timely notify IDEM of completion of any action contained in any approved plan	$250 per each week or part thereof late
11	Failure to timely submit certification statement	$250 per each week or part thereof late

14. 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 this 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.

15. Respondent is assessed a Civil Penalty of Thirty-Six Thousand Seven Hundred Fifty Dollars ($36,750). A portion of said penalty amount, totaling Seven Thousand Three Hundred Fifty Dollars ($7,350) shall be due and payable to the Environmental Management Special Fund within 30 days of the Effective Date. In lieu of payment of the remaining portion of the Civil Penalty totaling Twenty-Nine Thousand Four Hundred Dollars ($29,400), the Respondent shall perform a Supplemental Environmental Project (SEP), as described below.

16. The Respondent has elected to perform a pollution prevention SEP which consists of replacement of the existing chlorination/dechlorination disinfection system at the Danville Wastewater Treatment Plant with an Ultraviolet Light (UV) system. 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 Fifty-Eight Thousand Eight Hundred Dollars ($58,800) in order to offset the remainder of the civil penalty totaling Twenty-Nine Thousand Four Hundred Dollars ($29,400). The Respondent estimates the total cost of the SEP to be at least Two Hundred Fifty Thousand Dollars ($250,000).

17. The Respondent shall complete the SEP within 30 months of the Effective Date of the Agreed Order to coincide with a planned wastewater treatment plant expansion project. The Respondent shall obtain any necessary permits from IDEM. Within 30 days of completion of the SEP, Respondent shall submit to IDEM an itemized list, along with supporting documentation, of costs incurred in performing the SEP. In the event that the SEP cost is greater than Fifty-Eight Thousand Eight Hundred Dollars ($58,800), the Respondent assumes responsibility for all additional costs without further offset of the civil penalty. In the event that the SEP cost is less than Fifty-Eight Thousand Eight Hundred Dollars ($58,800), the Respondent shall pay the balance of the civil penalty that is not offset by the SEP, calculated utilizing the 2:1 offset ratio described in Paragraph 17 above, 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.

18. In the event that the Respondent fails to complete the SEP within 30 months of the Effective Date of this Agreed Order, the Respondent shall pay the entire balance of the civil penalty, totaling Twenty-Nine Thousand Four Hundred Dollars ($29,400), 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.

19. 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.

20. In the event that the civil penalty required by Paragraph 15 is not paid within 30

days of the Effective Date of this Agreed Order, the 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.

21. Pursuant to IC 14-22-10-6, the Respondent shall reimburse the Indiana Department of Natural Resources (IDNR) for the value of the damages resulting from the death of

wild animals, as described in Findings of Fact Paragraph above. IDNR has determined this value to be Five Thousand Seven Hundred Twenty One Dollars and Twenty-Eight Cents ($5,721.28). Payment shall be made to the "Indiana Department of Natural Resources- Contaminant Fund" within 30 days of the Effective Date of this Agreed Order, and sent to the IDNR, Division of Fish and Wildlife, Room W-273, IGCS, 402 West Washington Street, Indianapolis, Indiana 46204.

22. 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 Agreed Order 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.

23. "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.

24. 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.

25. The Respondent shall provide a copy of this Agreed Order, if in force, to any subsequent owners of 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.

26. 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 the Respondent of its obligation to comply with the requirements of its applicable Permit or with any other applicable federal or state law or regulation.

27. The Complainant does not, by its approval of this Agreed Order, warrant or aver

in an 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 Permit, federal, or state law.

28. This Agreed Order shall remain in effect until the Respondent has complied with all terms and conditions of Order Paragraphs 2 through 21 of this Agreed Order, and Complainant has issued a close-out letter.

TECHNICAL RECOMMENDATION: RESPONDENT:

Department of Environmental Management

By: _________________________ By: _________________________

Mark Stanifer, Section Chief Myron Anderson, President

Office of Enforcement Town Council of Danville

Date: _______________ Date: _______________

COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:

Department of Environmental Management

By: _________________________ By: ________________________

Hala Silvey Kevin W. Dogan

Office of Legal Counsel Town Attorney

Department of Environmental Management

Date: _______________ Date: _______________

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _______________________ DAY OF ____________________, 2003.

FOR THE COMMISSIONER:

Signed 10/30/03

Felicia A. Robinson

Deputy Commissioner for Legal Affairs

Attachment A

The portion of the Compliance Plan required pursuant to Order Paragraph 3b shall

provide for the following:

1. Development and implementation of a Maintenance Program that includes, but is not necessarily limited to:

a routine/ongoing preventive maintenance of facilities and equipment, using a predictive approach to continually review and update maintenance procedures;

b. identification of critical parts needed for system operation and maintenance;

c. establishment and maintenance of an adequate inventory of replacement parts; and

d. routine/ongoing efforts to identify sources of infiltration and inflow and to systematically eliminate those sources.

2. Development and implementation of an Operations and Capacity Management Program that includes, but is not necessarily limited to:

a. routine/ongoing assessment of the structural integrity and capacity of the collection system and treatment facilities;

b. evaluation of the impact of industrial and other non-domestic collection systems tributary to all overflow and/or bypass points, and identification and implementation of actions necessary to address such impacts;

c. Identification and prioritization of structural and hydraulic deficiencies (particularly those that allow for infiltration and inflow to the collection system and limit the capacity of the sewer lines to transport all collected water to the treatment plant for treatment and/or those that are causing or contributing to collection system discharges) and identification and implementation of rehabilitative actions needed to correct each deficiency,

d. monitoring of the collection system, both routinely and during all precipitation events, to identify discharges, and

e. Procedures for responding to and operating during conditions likely to result in collection system discharges, such as floods, equipment failure, and power failure.

3. Development and implementation of an Information Management Program that includes, but is not necessarily limited to:

a. Development and maintenance of an accurate and up-to-date map of the collection system,

b. Procedures for recording and reporting collection system discharge events, consistent with the requirements of the Permit,

c. Identification and illustration of trends in overflow occurrences,

d. Procedures for responding to overflows,

e. Procedures for tracking collection system problems (including customer complaints).

f. Maintenance of all records resulting from work performed in the collection system including work orders associated with investigations, inspections, new installations, preventive and routine maintenance, and corrective actions;

g. Procedures for complying with the records retention requirements of the NPDES permit;

h. Documentation of all activities taken in order to implement the portion of the CP required pursuant to Paragraph 3b.

4. Development and implementation of a Training and Review Program that includes, but is not necessarily limited to:

a. Appropriate regular and refresher training on a routine basis for employees and other affected persons, on procedures for implementation of the provisions of the CP required pursuant to Order Paragraph 3b, and

b. Annual reviews by representatives of all levels of management and staff to assess the overall effectiveness of the portion of the CP required pursuant to Paragraph 3b, and recommend adjustments.

5. Development and implementation of a Monitoring and Modification Program that includes, but is not necessarily limited to:

a. Ongoing monitoring of the implementation and effectiveness of the portion of the CP required pursuant to Paragraph 3b, and

b. Modification and update as necessary to ensure that the purpose of the CP required pursuant to Paragraph 3b is achieved.