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IN THE MATTERS OF: REMEDIATION
OF HAZARDOUS SUBSTANCES
AND PETROLEUM AT CITY OF OWNED
TREATMENT WORKS WALNUT
CREEK AND and COMMISSIONER OF THE
DEPARTMENT Complainant, v. CITY OF Respondent. |
) ) ) ) ) ) ) ) ) ) ) ) ) ) |
IDEM Site No. 000000175 NPDES Permit No. IN0024805
Case No. 2002-12223-W |
AGREED ORDER
1. Complainant and Respondent desire to settle and compromise
these actions without hearing or adjudication of any issue of fact or law, and
consent to the entry of the following Findings and Order. Pursuant to IC 13-30-3-3, entry into the
terms of this Agreed Order (“Order”) does not constitute an admission of any
violation contained herein. The
Respondent’s entry into this 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.
2. The
3. Complainant is the Commissioner of the
4. Respondent is the City of Warsaw (Respondent or Warsaw), which
owns and operates a publicly-owned treatment works (POTW) located at 794 Center
Street, in Warsaw, Kosciusko County, Indiana, authorized by National Pollutant
Discharge Elimination System (NPDES) Permit IN0024805 (the Permit) to discharge
treated sanitary wastewater to Walnut Creek via Outfall 001 and its combined
sewer overflow outfall(s) (Plant 1) and a POTW located on County Road 150
North, authorized by NPDES permit IN0060917 to discharge treated sanitary
wastewater to the Tippecanoe River (Plant 2).
5. This Order:
is entered into by and between IDEM
and Respondent pursuant to IC 13-24-1, IC 13-25-4 and IC 13-30-3; has been
negotiated by the parties in good faith; and is fair, reasonable, and in the
public interest.
6. Respondent
agrees to undertake the obligations required by the terms and conditions of
this Order and, upon signing this Order, to waive its right to administrative
and judicial review of this Order in addition to waiving any defense based on
any failure by IDEM to issue a notice of violation or special notice
letter. Respondent also agrees not to
contest the jurisdiction of IDEM to enter into this Order.
7. In
agreeing to the issuance of and in entering into this Order, Respondent does
not admit any liability for any conditions at the Site and does not admit that
there is a release or threatened release of Hazardous Substances or Petroleum
from the Site.
8. This
Order shall apply to and be binding upon the Respondent and its agents, successors,
and assignees. The signatories to this
Order certify that they are fully authorized to execute and legally bind the
parties they represent.
9. Respondent
shall ensure that all of its contractors, subcontractors, representatives and
other parties acting for or on behalf of Respondent receive a copy of this
Order and comply with this Order.
Respondent shall be solely responsible for any noncompliance with this
Order.
10. Unless
otherwise expressly provided herein, terms used in this Order that are defined in IC 13-11-2, Section
101 of CERCLA, 42 U.S.C. § 9601, or regulations promulgated thereunder, shall
have the same meaning assigned to them in Indiana Code or CERCLA or in such
regulations. Whenever terms listed below
are used in this Order, the following definitions shall apply:
11. “CERCLA”
means the Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, as amended by the Superfund Amendments and Reauthorization Act of
1986, 42 U.S.C. §§ 9601, et seq.
12. “Contaminants
of Concern” means any and all of the chemical elements and compounds listed on
Attachment A attached hereto, some of which constitute Hazardous Substances,
Petroleum and/or pollutants as defined under the Clean Water Act.
13. “Feasibility
Study” means a study undertaken by Respondent to develop and evaluate options
for remedial action. The term also
refers to a report that describes the results of the study.
14. “Hazardous
Substance” shall have the meaning set forth in CERCLA § 101(14), 42 U.S.C. §
9601(14) and IC 13-11-2-98.
15. “Interest”
means interest at the rate specified at IC 24-4.6-101 for interest on
investments of the Hazardous Substances Response Trust Fund established by IC
13-25-4-1(a).
16. “National
Contingency Plan” or “NCP” means the National Oil and Hazardous Substances
Pollution Contingency Plan, codified at 40 C.F.R. Part 300, as amended.
17. “Petroleum” shall have the meaning set forth at IC 13-11-2-160.
18. “Release” shall have the meanings set forth at IC 13-11-2-184.
19. “Remediate” means to engage in removal or remedial actions.
20. “Remediation
Work Plan” or “RWP” means the IDEM-approved work plan for the Site.
21. “Response
Costs” means all reasonable costs, including, but not limited to, direct and
indirect past and future costs, which IDEM may incur under Order Paragraph
number 63 (emergency measures and notification of releases), or Order Paragraph
number 72 (work takeover). Response
Costs shall also include the reasonable costs of an outside contractor to
assist IDEM in oversight of this Order if one is retained.
22. “Site”
means the City of Warsaw POTW Plant 1 and portions of
23. “Work”
means all activities required to be performed consistent with this Order and
plans approved pursuant to this Order.
Based upon information
available upon execution of this Order, the Commissioner of IDEM makes the
following Findings:
Count 1: Allegations Related to Water Quality
24. Pursuant to IC 13-30-3-3, on October 29, 2002, IDEM issued a
Notice of Violation (NOV) via Certified Mail, in case number 2002-12223-W to:
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The
Honorable Ernest Wiggins, Mayor |
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City
of |
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City
Hall |
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25. During
July, August, and September 2002, inspections and other on-site visits were
conducted at the Site by representatives of IDEM and the Indiana Department of
Natural Resources (IDNR) Division of Law Enforcement. The violations cited in IDEM’s NOV, in case
number 2002-12223-W, are
incorporated herein by reference for all purposes.
26. Respondent
and IDEM met on January 24, 2003, March 6, 2003, September 27, 2004, March 11,
2005, August 9, 2005, and January 20, 2006 to discuss the violations cited in
the NOV, in case number 2002-12223-W and settlement of the case.
27. Subsequent
to the issuance of the NOV, Respondent has reported exceedances of the
following effluent limitations in its NPDES permits on its monthly reports:
Plant 1
·
Dissolved Oxygen: August 2002 and October 2003
·
Total Suspended
Solids: August and September 2002
·
Ammonia nitrogen:
August, September, October, and November
2002
·
Cyanide: April 2003
·
Copper: August and December 2002; June 2003; and April
2006
·
T. Residual
Chlorine: April 2003 and April, May,
June, and July 2004
·
E. coli: August and
September 2002; May, June, July, August, and October 2003; April and August
2004; May 2005; and May 2006
·
CBOD5:
August
and September 2002
·
NOEL: August 2002, February 2003, and December 2005
(retested and passed the same month)
Plant 2
·
Cyanide: November and December 2003 and January through September 2004 (March 2004 was the only
detection of cyanide above the LOQ – see next paragraph)
·
E. coli: April, June,
August, and October 2004; April,
June and August 2005; and June and July 2006
·
NOEL: December 14,
2004
·
Dissolved
Oxygen: June 2005
Respondent waives its right
to the issuance of a Notice of Violation and the 60 day settlement period for
these violations and any violation resulting from these aforementioned
exceedances.
28. The
initial NPDES permit for Plant 2 failed to contain a footnote that allowed for
a cyanide effluent limit at the limit of quantitation (16 µg/l). This error was identified by IDEM and the
NPDES permit was subsequently modified to provide that effluent concentrations
of cyanide less than the Limit of Quantitation (LOQ) are considered to be in
compliance. The permit modification,
which became effective November 1, 2004, also included various other items
including a 3,000 foot outfall relocation.
The cyanide exceedances reported in November 2003 through February 2004
and April 2004 through September 2004 would not have constituted a violation
under the permit as modified. Further,
the cause for these cyanide exceedances was found to be matrix interferences
that produced artificially high cyanide results, poor duplicate recoveries, or
poor matrix spike recoveries. Respondent
has not detected any additional cyanide concentrations above the LOQ since
September of 2004.
29. On
November 3, 4, and 5, 2004, EPA Region 5, along with IDEM, conducted an audit
of
Count 2: Allegations Related to Hazardous Substances,
Petroleum,
and Underground Storage Tank
Violations
30. Respondent
discharged anaerobic digested sludge solids to
31. IDEM issued a Special Notice of Liability to Respondent on
January 9, 2004.
32. The Findings set forth in Count number 1 are hereby incorporated
by reference.
33. The Site
is a “facility” as defined by CERCLA § 101(9), 42 U.S.C. § 9601(9), and for the
purposes of IC 13-25-4. A portion of the
Site is also a “petroleum facility” under IC 13-11-2-161.
34. Releases,
as defined in IC 13-11-2-184, of Hazardous Substances and Petroleum and/or
threatened Releases have occurred at the Site.
The presence of Hazardous Substances at the Site or the past, present,
or potential release of Hazardous Substances currently located at or emanating
from the Site constitute actual and/or threatened “Releases” as defined in
CERCLA § 101(22), 42 U.S.C. § 9601(22) and IC 13-11-2-184.
35. Respondent,
as a current owner and operator of part of the Site and who arranged for the
release of Hazardous Substances at the Site, is a party responsible under
CERCLA § 107(a), 42 U.S.C. § 9607(a), and is a “responsible person” under IC
13-11-2-192(b).
36. Respondent,
as an owner, operator, and responsible person for the Site, is a liable party
under IC 13-24-1-4 and IC 13-23 for response or remedial actions for Petroleum
at the Site.
37. Respondent
owned and operated underground storage tank (UST) systems, UST Facility I.D.
number 14170, located at the POTW.
38. On
January 27, 1994, Respondent reported a release of Petroleum at the Site from
an underground storage tank (Leaking Underground Storage Tank (LUST) Incident
number 199401539).
39. Because
free product was discovered, Respondent submitted a Twenty Day Abatement Report
on February 21, 1994, which was dated February 11, 1994.
40. On March
1, 1994, Respondent submitted a UST closure report dated February 23, 1994, for
one (1) 10,000 gallon gasoline tank.
41. Because
contamination remained following the UST closure, Respondent on March 18, 1994,
submitted a LUST Initial Site Characterization Report dated March 16, 1994.
42. On
August 21, 1997, Respondent reported a release of Petroleum at the Site from an
underground storage tank (LUST Incident number199708515).
43. On
September 8, 1997, Respondent submitted a UST closure report for one (1) 10,000
gallon gasoline tank and one (1) 10,000 gallon diesel fuel tank.
44. On
December 2, 2003, IDEM sent a site activity update request letter to Respondent
requesting information and documentation of additional actions taken at the
Site pursuant to 329 IAC 5-3-1(b).
45. On
December 19, 2003, Respondent submitted a letter in response to IDEM’s letter
of December 2, 2003. No additional
documentation was submitted.
46. IDEM
determined the information provided was insufficient and sent a letter to
Respondent on March 11, 2004 (included as Attachment C to this Order, and
incorporated herein), requesting it to conduct a Further Site Investigation
(FSI) to fully delineate the nature and extent of contamination pursuant to IC
13-23 and 329 IAC 9-5-6.
47. On March
14, 2005, IDEM sent Respondent a Violation Letter, notifying Respondent that it
was in violation of 329 IAC 9-5-6 and requesting Respondent to complete the
activities listed in IDEM’s letter of March 11, 2004, within 45 days of receipt
of the letter to correct the violation.
48. On May
18, 2006, IDEM sent Respondent a Notice of Violation, alleging the same facts
and violations stated in IDEM’s March 11, 2004 letter and March 14, 2005
Violation Letter.
49. Respondent has submitted the following documents and reports to
IDEM:
a. Stream
Condition Assessment Report,
b. Supplemental
Stream Condition Assessment Report,
c. Remedial
Investigation Work Plan:
d. Sludge
and Metals Mass Balance Reports for
e. Health
and Safety Plan for RI Work Plan, dated August 20, 2004;
f. Quarterly
Status Reports, Walnut Creek Remedial Investigation, dated January 10, 2006, May 16, 2006, and September 27, 2006;
g. Walnut
Creek Remedial Investigation Strategy Update dated January 17, 2006;
h. Response
to IDEM regarding City of
i. Revised
RI Work Plan dated September 15, 2005;
j. Addendum
to RI Work Plan dated May 16, 2006; and
k. Remedial
Action Options Analysis, Walnut Creek Downstream of the Warsaw Wastewater
Treatment Plant,
50. Pursuant
to IC 13-30-3-3, IDEM issued a NOV on May 18, 2006, in case number
2005-14677-S, to Respondent for the violations listed above relating to its
USTs.
1. Based upon the Findings and by consent of
the Parties, it is hereby ORDERED that Respondent shall comply with all
provisions of this Order, including, but not limited to, all attachments and
all documents incorporated by reference into this Order.
2. This Order shall be effective (Effective
Date) when it is approved by the Complainant or his delegate, and has been
received by the Respondent. This Order
shall have no force or effect until the Effective Date.
3. Respondent shall comply with all rules,
statutes and permit conditions cited in the Findings of Fact of this Order.
4. All plans and reports described in this
Order other than those that have already received final approval from IDEM
shall be subject to review, evaluation and approval by IDEM. If IDEM deems a plan or report inadequate, a
revised plan or report shall be submitted to IDEM within the time period specified by the notice. If, after submission of any revised document,
IDEM still finds the document to be inadequate, then IDEM may request further
modification as necessary to meet IDEM’s requirements, and require
re-submittal. If Respondent fails to
timely submit the revised document or, after the third submission, Respondent still
has not incorporated the IDEM-suggested modifications into the plan or report
or submitted an adequate alternative as determined by IDEM, then IDEM may
modify the plan or report and the Respondent shall implement it accordingly
subject to the dispute resolution provisions in Part VII. IDEM’s failure to act on a plan or report
shall not constitute IDEM’s acceptance of the plan or report. IDEM shall make a determination concerning
the approval, rejection, or modification of the plan or report and so notify
Respondent.
5. Upon receipt of approval of a plan or
report or any modification by IDEM, Respondent shall implement the work detailed in the approved or
modified plan or report according to the schedule as set forth therein.
6. Any such approved or modified plan or
report shall be deemed incorporated into and made an enforceable part of this
Order.
A. Water Quality Compliance
7. Permit
Records and Data Management Compliance Plan (PRDMCP). Respondent submitted to IDEM a PRDMCP dated
June 2003 setting forth its plan for complying with the monitoring, record
keeping, and reporting requirements contained in the Permit. IDEM approved the PRDMCP by letter of June 2,
2004. Respondent shall immediately
implement the approved PRDMCP. Within
thirty (30) days of the Effective Date, Respondent shall conduct PRDMCP training
with POTW personnel and provide documentation to IDEM of such training, with an
agenda and registration of participants, and evidence that the PRDMCP is being
applied in day-to-day operations of the POTW.
8. Emergency
Response Plan (ERP). On June 25,
2003, IDEM received Respondent’s initial ERP.
IDEM provided comments on the document by letter of August 18,
2003. Respondent provided to IDEM a
revised ERP dated January 2006, on which IDEM provided comments. Respondent shall address these comments and
submit a new version of the ERP as appropriate within thirty (30) days of the
Effective Date.
Respondent shall also
address the EPA comment concerning Respondent’s Sewer Use Ordinance (SUO) and
ERP in EPA’s Pretreatment Program Audit, which was conducted on November 3-5,
2004, and memorialized in a report dated February 24, 2005. Specifically, Respondent must make and provide
IDEM with a written determination as to whether Respondent’s SUO authorizes
some of the enforcement actions listed in the City’s ERP, namely administrative
orders, enforcement compliance schedules and administrative fines. Respondent must provide this determination to
IDEM within forty-five (45) days of the Effective Date of this Order. If Respondent determines that its existing
SUO authorizes the above enforcement actions, it shall include in its
submission an explanation as to which sections of the SUO it is relying on for
its determination. If Respondent
determines that its existing SUO does not authorize the above enforcement
actions, it shall include in its submission a schedule for revising its SUO to
authorize the above enforcement actions.
Within sixty (60) days of IDEM’s
approval of the ERP, Respondent shall conduct ERP training with POTW personnel
and provide documentation to IDEM of such training, with an agenda and
registration of participants, and evidence that the ERP is being applied in day
to day operations of the POTW.
9. Toxicity
Reduction Evaluation (TRE). In
September 2003, Respondent submitted a TRE (dated August 2003) for IDEM
review. That document, which required
immediate implementation, was approved by IDEM in a letter dated November 12,
2003. Respondent has had difficulty
finding a correlation between toxicity and sources of the toxicity, thereby making
elimination of the source(s) of toxicity difficult. Respondent shall continue
toxicity testing in accordance with the Permit.
10. Pretreatment
Program Compliance Plan (PPCP). On
June 13, 2003, IDEM received Respondent’s initial PPCP.
11. Facility
Improvements. Respondent submitted
to IDEM a Facility Improvement Report (FIR) dated June 24, 2003. IDEM provided comments based on its review of
the FIR dated September 18, 2003.
Respondent’s consultant provided comments in response by letter dated
December 15, 2003, but that letter was not received by IDEM until June 21,
2004. IDEM provided additional comments
by letter of September 1, 2004, requesting further detail and clarification
from Respondent. Respondent shall submit
a revised FIR within sixty (60) days of the Effective Date, documenting what it
has done concerning the following:
a. Odor
control. Respondent has identified
sources of odor and implemented measures to reduce odors from the plant. Respondent has brought the sludge gas flare
back into service. Respondent also has implemented proper scum management and removal procedures,
including straining scum through a bag filtering process and daily offsite
disposal of scum collected in the bag filters.
b. Scum
and Sludge Removal Systems.
Respondent has evaluated the scum and sludge removal systems in all
primary clarification systems at its wastewater treatment plant, and has
identified facility improvements or other measures required to ensure effective
scum and sludge removal such that scum and sludge accumulation does not
negatively impact primary clarifier operations or effluent quality. Respondent replaced its sludge filter belt on
September 2, 2004. Respondent purchased,
installed and began operating a new grit pump in September 2003. Grit is removed regularly from the system,
placed in containers on-site, and removed from the Site each weekday for
landfill disposal.
c. Sludge
Management. Evaluate sludge
management and storage capabilities, including, at a minimum, identifying any
facility or operation improvements, or other measures required to ensure
compliance with the Permit, effective and efficient operation of all treatment
processes, and control of odor. This evaluation shall include sludge digestion
operations, digester gas management, sludge thickening, land application, and
emergency sludge storage. This
evaluation shall also include consideration of additional facilities for sludge
decanting and belt filtration.
Respondent shall prepare and submit to IDEM a report of its findings
within one hundred eighty (180) days of the Effective Date.
d. Facility
Space. Evaluate the adequacy of the
existing space at the facilities for storage, maintenance, and facility support
operations, including, identifying any expansions or space additions required
for storage of backup equipment, spare parts, and maintenance equipment. Respondent’s Facility Improvement Report
dated June 24, 2003, states that it has completed this task. Respondent has hired a new lab manager and
conducted lab training. Within ninety
(90) days of the Effective Date, Respondent shall provide to IDEM an analysis
of options to upgrade the lab at Plant 1 or replace lab operations at Plant 1
with expanded and improved lab facilities and operations at Plant 2, along with
an implementation plan and schedule.
e.
Staffing. Evaluate
staffing of the POTW, including identification of any staffing increases
necessary to ensure operation of the facilities in consistent compliance with
all applicable legal requirements and an ongoing training program for
operational and laboratory staff.
Respondent’s FIR dated June 24, 2003, states that it has completed this
task. Respondent has hired a new lab
manager and conducted lab training.
Within ninety (90) days of the Effective Date, Respondent shall provide
to IDEM an analysis of options to upgrade the lab at Plant 1 or replace lab
operations at Plant 1 with expanded and improved lab operations at Plant 2,
along with an implementation plan and schedule.
f.
IOSHA Issues. Respondent believes
it has addressed IOSHA worker safety
requirements by installing HVAC units in the gravity belt thickener room, the
operator’s room, the operations supervisor’s office, the industrial
pretreatment coordinator’s office, the laboratory, and the trailer used for
breaks and training; installing a cable for securing a fall-protection harness
between the aeration basins; and avoiding the need for operators to walk on the
weirs by cleaning weirs with fire hoses from a safe distance.
g.
Additional
Requirements. (i) a description of any required facility
improvements or other measures identified in the above evaluations, and the
estimated costs of those improvements or measures; (ii) a proposed
schedule for implementing the identified facility improvement needs and other
measures identified in those evaluations (or identify those items that have
already been completed); and (iii) a description of all actions taken to
comply with the requirements of this Paragraph.
Upon IDEM’s approval of each FIR, Respondent shall implement all
facility improvements and other measures described therein, in accordance with
the approved schedule.
h.
Plant 2. Plant 2 was
not complete, nor was there a discharge from Plant 2 at the time that the NOV
was issued in Case 2002-12223-W.
However, there have subsequently been at least one cyanide and two E.
coli violations reported for the discharge from Plant 2. Respondent’s investigation and resolution of
the cyanide detections is described above at Findings Paragraph No. 28. Respondent immediately determined the E.coli
violations were due to dirty UV disinfection tubes; Respondent has modified the
procedures and increased the frequency of maintenance and cleaning of the UV
tubes to solve this problem.
12. Standard
Operating Procedure Protocols.
Respondent is required to develop for IDEM’s approval, separate
protocols establishing standard operating procedures which are consistent with
currently accepted good industry practices for each of the following: (i)
operation of the wastewater treatment facilities; (ii) maintenance of the
wastewater treatment facilities; (iii) staff training and management for the
wastewater treatment facilities; (iv) solids inventory, control, and
management; (v) sludge handling and disposal; (vi) sampling procedures; (vii)
laboratory quality assurance/quality control; (viii) hauled/trucked waste
acceptance procedures; and (ix) responses to any non-compliance with applicable
legal requirements and any associated adverse impacts. Upon IDEM’s approval of each protocol,
Respondent shall provide copies of the protocol to all affected employees,
maintain copies of the protocol at appropriate/accessible locations at the
wastewater treatment facilities, and use the protocol as standard operating
procedures.
Respondent submitted an
Operations and Maintenance Manual (O&M Manual) for Plant I dated October
2003. In February 2006, Respondent
submitted an updated O&M Manual for Plant 1 dated August 2005, which is
currently under review. The O&M
Manual is subject to IDEM approval. In
the event IDEM determines that the O&M Manual is deficient or otherwise
unacceptable, Respondent shall revise and resubmit it to IDEM in accordance
with IDEM’s notice. If after three
submissions of the O&M Manual by Respondent or Respondent’s failure to
timely submit a revision IDEM determines the manual is still not approvable, then
IDEM may modify and approve the O&M Manual and Respondent shall implement
it as approved. Within ninety (90) days of receipt of
notice of IDEM approval, Respondent shall conduct Operations and Maintenance
Manual training with POTW personnel and provide documentation to IDEM of such
training, with an agenda and registration of participants, and evidence that
the Operations and Maintenance Manual is being applied in day to day operations
of the POTW.
13. Flow
Monitoring, Metering, and Recording.
Respondent has serviced, repaired or replaced and calibrated the
existing influent and effluent flow meters and recorders, such that each of
these devices is fully functional and each consistently achieves an accuracy of
better than or equal to +/- 15% for the flow volume and the flow rate,
and such that an accuracy of better than or equal to +/- one minute is achieved
for all time measurements. Respondent
also has ensured that the flow recording equipment provides for both electronic
and paper chart recording of the instantaneous flow rate, and the
integrated/totalized flow volume. The
electronic recording equipment displays instantaneous flow rate data
continuously and records instantaneous flow rate and integrated/totalized flow
volume data in at least five-minute (minimum) increments. Respondent shall continue to calibrate the
flow meters as necessary, but at
least annually.
14. All submittals required by Order Paragraph Nos. 7 through 13 of
this Order, unless notified otherwise in writing, shall be sent to:
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Mark Stanifer, Chief |
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Water Enforcement Section |
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IDEM, Office of Enforcement, Mail Code 60-02 |
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15. The
Respondent is assessed a civil penalty of Two Hundred Thirty Thousand, Seven Hundred Dollars ($230,700.00). Within 30 days of the Effective Date,
Respondent shall pay a portion of this penalty (representing 20% of the total)
in the amount of Forty Six Thousand One Hundred Forty Dollars ($46,140).
16. In lieu
of payment of the remaining 80% of the civil penalty (representing the amount
of $184,560), Respondent shall perform and complete two (2) Supplemental
Environmental Projects (SEPs).
Leesburg Sewer Connection. As the first
SEP, Respondent shall extend sewer service north toward the Town of
Relocation of POTW
Outfall SEP. IDEM has agreed to allow Respondent to use
its relocation of the main outfall at Plant 2 to a point sufficiently
downstream of the original location in order to avoid potential impacts to
endangered mussels in the
Respondent shall complete
the first SEP within a timeframe to be agreed upon after further discussions
between Respondent, IDEM and Leesburg (but in no event shall the SEP be
completed later than December 31, 2008). In the event that Respondent fails to complete
the Leesburg sewer connection SEP within required timeframe, Respondent shall
pay the entire balance of the civil penalty, totaling $230,700, plus interest,
except as provided below concerning partial SEP credit.
Within thirty (30) days
following completion of each SEP, Respondent shall submit to IDEM an itemized
list, along with supporting documentation, of costs incurred in performing the
SEP. Respondent shall not receive a credit
or offset against the civil penalty under this Order in excess of $184,560,
even if the combined cost of the two (2) SEPs is greater than $369,120. The Respondent assumes responsibility for
such additional costs, except that
In considering qualifying
money spent by Respondent toward its obligations under this Paragraph, money
spent toward the Leesburg Sewer Connection SEP shall be considered first. In the event that the money spent to fulfill
its obligation to perform the Leesburg SEP is less than $369,120, then amounts
spent toward its obligation to perform the Relocation of POTW Outfall SEP shall
next be considered.
In the event that Respondent
is legally precluded from complete performance of the Leesburg SEP described
above, or is unable to complete performance within the timeframes set forth in
the preceding paragraph, due to the imposition of any requirements or
prohibitions of the Great Lakes—St. Lawrence River Basin Sustainable Water
Resources Agreement, the Great Lakes Charter or the Great Lakes Charter Annex
2001, then Respondent must immediately notify IDEM, and Respondent shall have
no further obligation regarding performance of the Leesburg SEP. Respondent shall be given SEP credit for any
costs incurred prior to the date Respondent received notice of such
prohibition. At this time the parties do
not believe that any such restriction or prohibition exists.
Interest on the balance of
the civil penalty shall be paid from the Effective Date. Interest shall accrue at the rate established
by IC 24-4.6-1-101. Payment of interest
and/or any balance of the civil penalty that becomes due and payable shall be
made to the Environmental Management Special Fund, within fifteen (15) days of
receipt of notice from IDEM that payment is due.
17. In the
event the terms and conditions of the following Order Paragraphs are violated,
Complainant may assess and Respondent shall pay a stipulated penalty in the following
amount:
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Paragraph |
Violation |
Stipulated
Penalty Amount |
|
4 |
Failure to submit approvable plans or failure to
revise plans within the time periods required by IDEM. |
$200 per week, or part thereof. |
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5 |
Failure to implement any of the plans required by
Order Paragraph 5 upon approval by IDEM. |
$200 per week, or part thereof. |
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7 |
Failure to conduct training concerning the approved
Permit Records and Data Management Plan. |
$200 per week, or part thereof. |
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8 |
Failure to conduct training concerning the approved
ERP. |
$200 per week, or part thereof. |
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11 |
Failure to submit or late submittal of a report on
the final FIR within the
prescribed time period. |
$200 per week, or part thereof. |
18. Stipulated penalties shall be due and payable within thirty days
after Respondent receives written notice that Complainant has determined a
stipulated penalty is due. Assessment
and payment of stipulated penalties shall not preclude Complainant from seeking
any additional relief against Respondent for violation of the Order. In lieu of any of the stipulated penalties
given above, Complainant may seek any other remedies or sanctions available by
virtue of Respondent’s violation of this Order, or
19. Civil and stipulated penalties are payable by check to the
Environmental Management Special Fund.
Checks shall include the Case Numbers of this action and shall be mailed
to:
|
Indiana
Department of Environmental Management |
|
Cashiers
Office – Mail Code 50-10C |
|
|
|
|
20. In the event that the civil penalty
required by Order Paragraph No.15 is not paid within thirty (30) days of the
Effective Date, 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.
B. Hazardous
Substances and Petroleum Compliance
21. Leaking Underground Storage Tanks.
a. Within
sixty (60) days of the Effective Date, Respondent shall submit a Further Site
Investigation (FSI) to IDEM. The FSI
shall address the deficiencies noted in IDEM’s letter of March 11, 2004
(attached as Attachment C). If IDEM
determines the extent of contamination has not been fully delineated,
Respondent shall conduct further investigation as directed by IDEM to delineate
the extent of contamination.
b. In the
event that the Respondent fails to timely submit the FSI, Complainant may
assess and Respondent shall pay a stipulated penalty of $500 per week or part
thereof.
c. Within
sixty (60) days of receipt of notice that IDEM has approved the FSI, Respondent
shall submit a Corrective Action Plan (CAP) to address the contamination if so
directed by IDEM. Respondent shall
utilize IDEM’s Underground Storage Tank Branch
Guidance Manual, October 1994 or IDEM’s Risk Integrated System of Closure
(RISC) Technical Guide and User’s Guide, IDEM NPD No. W-0046, 24
d. IDEM’s
approval or modification of the CAP does not relieve Respondent of the
requirement to apply for and obtain all necessary permits prior to performing
any remediation activities.
e. Upon
receipt of approval of a plan or report or any modification by IDEM, Respondent
shall initiate the work detailed in the approved or modified plan or report
according to the schedule as set forth therein.
f. In the
event that the Respondent fails to implement the approved CAP in accordance
with the schedule contained therein, Complainant may assess and the Respondent
shall pay a stipulated penalty of $1000 per week or part thereof.
g. Respondent
shall permit IDEM or IDEM’s agent to view and inspect any activities performed
to implement the CAP. In order to
facilitate such an inspection, Respondent shall notify IDEM at least seven (7)
days prior to undertaking any scheduled activities.
Designation
of Contractor and Project Managers
22. The Project Manager designated by each
party shall be responsible for overseeing the implementation of Part B of this
Order. Each Party has the right to
change its respective Project Manager and shall notify the other Party in
writing as soon as practicable of the change.
23. IDEM’s Project Manager shall have the authority
to halt, conduct, or direct any work required by this Order and/or any response
actions or portions thereof when conditions present an imminent and substantial
threat to public health or welfare or the environment. In the event that IDEM Project Manager halts
work pursuant to this Paragraph, IDEM may modify the schedule of work described
in the Remediation Work Plan.
Work to be Performed
24. Respondent shall perform investigative work
and remedial work (as appropriate) to address all areas at the Site where
releases of Hazardous Substances, pollutants or Petroleum from Respondent have
come to be deposited.
25. Respondent shall employ scientific,
engineering, and construction practices that are generally accepted within the
industry. All work performed under this
Order shall follow all applicable laws and regulations in effect as of the
Effective Date. Respondent shall also
follow any guidance documents (including nonrule policy documents) approved for
use at this site by IDEM, although failure to identify a specific guidance
document in this Order shall not preclude IDEM from utilizing a guidance
document or requiring Respondent to do so.
Unless expressly provided elsewhere in this Order or subsequently approved
by IDEM, the guidance documents approved for use are:
a. EPA’s
December 28, 2005, Final Contaminated Sediment Remediation Guidance for
Hazardous Waste Sites;
b. EPA’s
April 1998, Guidelines for Ecological Risk Assessment, EPA/630/R-95/002F;
c. EPA’s
December 1989, Risk Assessment Guidance for Superfund Volume 1 Human Health
Evaluation Manual (Part A), EPA/540/1-89/002 (including all relevant updates
thereto, such as the Supplemental Guidance for Dermal Risk Assessment (July
2004) (“RAGS”);
d. EPA
Region 5’s Ecological Risk Assessment Guidance for RCRA Corrective Action.
Waste Management Division. Interim Draft. July, 1994;
e. EPA
Region 5’s Ecological Screening Levels for RCRA Appendix IX Hazardous
Constituents. Working Draft 1999 (with updated August, 2003 ESL table);
f. Persaud,
D., R. Jaagumagi, and A. Hayton. 1992. Guidelines for the protection and
management of aquatic sediment quality in
g. Protocol
for the Derivation of Canadian Sediment Quality Guidelines for the Protection
of Aquatic Life, Canadian Council of Ministers of the Environment 1995, CCME
EPC-98E; and
h. Consensus
Based Sediment Quality Guidelines (CBSQG, MacDonald et al., 2000).
Respondent shall also follow
IDEM’s Underground Storage Tank Branch Guidance Manual, October 1994, or IDEM’s
Risk Integrated System of Closure (RISC) Technical Guide and User’s Guide, IDEM
NPD No. W-0046, 24
26. All work to be performed by Respondent
pursuant to this Order shall be performed under the direction and supervision
of qualified person(s) with expertise in site investigation and remediation of
Hazardous Substances and Petroleum. This
individual may, but need not, be designated by Respondent as Respondent’s
Project Manager. Within thirty (30) days of the Effective Date, Respondent
shall notify IDEM, in writing, of the name, title, and qualifications of such
qualified person(s) and of any contractors and/or subcontractors to be used in
carrying out the terms of this Order.
Respondent shall also notify IDEM of the name(s) and qualification(s) of
any other contractor(s) or subcontractor(s) retained to perform the Work at
least fourteen (14) days prior to commencement of such Work.
27. Respondent shall develop and submit a
revised Remedial Investigation (RI) Work Plan designed to fully investigate the
nature and extent of the release of the Contaminants of Concern at the
Site. Respondent shall submit a revised
RI Work Plan to IDEM no later than sixty (60) days after the Effective Date,
unless an extension is agreed to by IDEM.
28. The revised RI Work Plan shall:
a. include
an ecological risk assessment for all Contaminants of Concern released from the POTW at the Site, which shall be
conducted following EPA’s ecological risk assessment guidelines;
b. include
a human health risk assessment for all Contaminants of Concern identified at the Site, which shall be
conducted following EPA’s RAGS;
c. be
consistent with the guidance documents identified in Order Paragraph number 25
above;
d. contain
a description of, and a proposed expeditious schedule for, the remedial
investigation and recommended response actions required by this Order; and
e. include
the modifications specified in IDEM’s letter to Respondent of July 13, 2005.
IDEM reserves the right to review the raw data
obtained by Respondent and require inclusion of Contaminants of Concern in the risk assessment(s)
that might otherwise have been eliminated in the screening process.
29. Respondent shall implement and complete the
revised RI Work Plan within the implementation schedule contained in the
approved revised RI Work Plan.
30. Within ninety (90) days of completion of
the revised RI Work Plan, Respondent shall submit to IDEM a RI Report detailing
the results of the RI. Based on the
results of the RI Report, IDEM may require one or more Supplemental RI Work
Plan(s) as necessary to complete the delineation of the nature and extent of
the releases. Any such Supplemental RI
Work Plan(s) shall be drafted and implemented in accordance with the guidance
documents identified in Order Paragraph No.25 above.
31. Respondent shall submit a Feasibility Study
describing and evaluating possible remedies to accomplish necessary remedial
work and reasons for selecting the chosen proposed remedy. The Feasibility Study shall be submitted
within ninety (90) days of completion of the RI Report.
32. Respondent shall propose and submit a
Remediation Work Plan designed to remediate the releases of Contaminants of Concern at the Site identified
during the implementation of the RI work plan.
The Remediation Work Plan shall be submitted not later than sixty (60)
days after IDEM’s approval or modification and approval of the Feasibility
Study, unless an extension is agreed to by the Parties.
33. The Remediation Work Plan shall:
a. be
consistent with the guidance documents specified in Order Paragraph No.25;
b. specify
the objectives for the remediation of the Contaminants of Concern releases.
Remedial objectives shall be based on the EPA guidance identified in
Order Paragraph No. 25 and take into
consideration both ecological risk and risk to human health; and
c. include
a proposed plan to accomplish the remedial objectives and the following project
plans: (i) a health and safety plan; (ii) a community relations plan; (iii) a
schedule for implementation of all tasks set forth in the Remediation Work
Plan; (iv) a quality assurance project plan, and (v) an operation and
maintenance plan if necessary.
34. Respondent shall cooperate with IDEM in
providing information about the Remediation Work Plan to the public. IDEM will give Respondent reasonable advance
notice of and may require Respondent’s or its agent’s attendance at any such
public meetings IDEM may hold or sponsor at times and locations which are
agreed upon by IDEM and Respondent.
35. Before IDEM approves the Remediation Work
Plan, IDEM may provide thirty (30) days for public comment. A public information file containing all
plans and reports provided under this Order shall be maintained by Respondent
during the thirty (30) day public comment period at a public repository near the
Site. Respondent shall provide the location
of the public place in the community relations plan contemplated in Order
Paragraph No. 33(c).
36. IDEM shall make a determination concerning
the approval, rejection, or modification and approval, of the Remediation Work
Plan and so notify Respondent. After
receipt of notice of approval, Respondent shall implement the work detailed in
the approved Remediation Work Plan according to the schedule set forth
therein. In the event IDEM determines
the Plan is inadequate, the procedures set forth in Order Paragraph No. 4 of
Part VI of this Order regarding revision and resubmittal of the Plan shall
apply. In the event IDEM modifies and
approves the Remediation Work Plan, Respondent shall implement the approved
Plan as modified, subject to Respondent’s right to pursue the Dispute
Resolution process set forth in Part VII. Upon IDEM’s approval, the Remediation
Work Plan shall be deemed incorporated into and made an enforceable part of
this Order.
37. Upon commencement of the Remediation Work
Plan and until completion thereof, Respondent shall provide a quarterly
progress report detailing the work performed or other significant events
pertaining to the Site. The quarterly
progress report shall include:
a. laboratory
reports or analyses of any samples taken during that quarter from standing
surface water, soils, sediments, or other materials removed or to be removed
from the Site;
b. documentation
of proper disposal of soils, sediments, or other materials removed during that
quarter from the Site; and
c. upon request
from IDEM, invoices, purchase orders, or other documentation of work performed.
38. In the event that IDEM reasonably
determines that additional work is necessary to complete the objectives of this
Order or the Remediation Work Plan, IDEM shall notify Respondent, in writing,
of the need to perform such work; Respondent shall submit a modified
Remediation Work Plan as directed by IDEM.
Respondent’s implementation of IDEM’s notice shall be subject to
Respondent’s right to pursue the Dispute Resolution process set forth in Part
VII.
39. If directed by IDEM, Respondent shall
perform confirmation sampling after the Remediation Work Plan has been
completed. Such confirmation sampling
may include: sampling performed by the
Respondent; IDEM testing of samples taken by Respondent; and/or sampling
performed by IDEM.
40. Within sixty (60) days after completion of
all Work required by this Order, Respondent shall submit for IDEM review and
approval a final report (Final Report) summarizing the actions taken to comply
with this Order. The Final Report shall
include a listing of quantities and types of materials (including soils,
sediments and hazardous wastes) removed from the Site or handled and treated at
the Site, a listing of the ultimate destination of those materials, a
presentation of the analytical results of all sampling and analyses performed,
and accompanying attachments containing all relevant documentation generated
during the response remedial action (e.g., manifests, invoices, bills,
contracts and permits).
41. After IDEM’s review of the
Final Report, IDEM will provide written notice to Respondent of IDEM’s
determination as to whether all Work has been completed in accordance with this
Order, with the exception of any continuing obligations required by this Order
(such as operation and maintenance, post-remediation site controls, access, and
record retention). If IDEM determines
that any such Work has not been completed in accordance with this Order, IDEM
will so notify Respondent and provide a list of the deficiencies. Respondent shall correct such deficiencies as
directed by IDEM. IDEM may direct
Respondent to modify the Remediation Work Plan if necessary to satisfy the
requirements of this Order. Respondent
shall submit and implement such a modified Work Plan in accordance with Order
Paragraph Nos. 33 and 36 and shall submit a modified Final Report in accordance
with Order Paragraph No. 40. Failure by Respondent to submit or implement
a modified Remediation Work Plan, if requested, shall be a violation of this Order.
Sampling and Analysis
42. The quality assurance
project plans approved by IDEM shall direct Respondent to use quality
assurance, quality control, and chain of custody procedures throughout any Work
Plan sample collection and analysis activities under this Order.
43. Respondent shall provide
IDEM’s Project Manager a minimum of fourteen (14) days notice prior to
conducting sampling and analysis under this Order, unless emergency conditions
prohibit such notice or shorter notice is agreed to by IDEM. To provide quality assurance and maintain quality control, Respondent shall:
a. allow
IDEM personnel and/or IDEM authorized representatives reasonable access to
laboratories and personnel utilized by Respondent for analyses;
b. ensure
that all sampling and analyses are performed according to EPA methods, the
approved Quality Assurance Project Plan, or other methods deemed satisfactory
by IDEM;
c. ensure
that any laboratories used by Respondent for analyses participate in a
documented Quality Assurance/Quality Control program that complies with EPA
guidance documents, and upon request by IDEM, arrange for such laboratories to
perform analyses of samples provided by IDEM to demonstrate the quality of
analytical data for each such laboratory; and
d. if
directed by IDEM, perform confirmatory sampling for all Contaminants of Concern
identified in the Remedial Investigation.
In the case of any data not gathered pursuant to the
requirements listed above, IDEM may reject such data, require resampling,
and/or require that Respondent utilize a different laboratory.
44. Respondent shall, upon
request, make the results of all sampling, including raw data, and/or tests or
other data generated by Respondent, or on Respondent’s behalf, available to
IDEM. Respondent shall not make any
claim of confidentiality or privilege with respect to analytical data generated
under this Order. IDEM will make
available to Respondent the quality-assured results of sampling and/or tests or
other data generated by IDEM.
45. At the request of either
Party, the other Party shall provide to that Party and/or its authorized
representative the opportunity to split or duplicate any samples collected
pursuant to the implementation of this Order.
Site Access
46. If the Site or any other
property where access is needed to implement this Order is owned or controlled
by Respondent, Respondent shall, commencing on the Effective Date, provide IDEM
and its representatives, including contractors, with access at all times to the
Site, or other such property, for the purpose of conducting any activity
related to this Order.
47. Where any action under this
Order is to be performed in areas not owned by Respondent or in the possession
of someone other than Respondent, Respondent shall use its best efforts to
obtain all necessary access agreements or permits within sixty (60) days after
the Effective Date, or as otherwise specified in writing by IDEM’s Project
Manager. For the purposes of this
Paragraph, “best efforts” shall include, at a minimum, a certified letter from
Respondent to the present owner of such property requesting access agreements
to permit Respondent, IDEM, and its authorized representative’s access to such
property. Respondent shall promptly
notify IDEM in writing of its efforts to obtain access if Respondent is unable
to obtain access. IDEM may then assist
Respondent in gaining access, to the extent necessary to effectuate the
response actions described herein, using such means as IDEM deems
appropriate. Denial of
access will not be considered to be a Force Majeure event unless Respondent
uses best efforts to obtain access.
48. Except as provided otherwise
in this Order, IDEM retains all of its applicable access authorities and
rights, including enforcement authorities related thereto, under IC 13-24-1-6,
IC 13-23-13-12, IC 13-25-4-5, IC
13-30-3, CERCLA, and any other applicable statutes or regulations.
49. IDEM may withdraw from or
modify this Order should Respondent’s inability to gain access to the Site or
other areas materially affect Respondent’s ability to perform the work required
herein.
Respondent’s inability to gain access to the Site or other areas
does not relieve Respondent of its obligations
under this Order.
Access to Information
50. Respondent shall provide to
IDEM, upon request, copies of all records, reports, or information (hereinafter
referred to as “records”) that are not privileged within its possession or
control or that of its contractors or agents relating to the Work, including,
but not limited to, sampling and analysis documentation, chain of custody
records, manifests, trucking logs, receipts, reports, correspondence, or other
documents or information related to the Site.
IDEM may also request electronic copies (in native format) of such
records.
51. Respondent may assert
business confidentiality claims covering part or all of the records submitted
to IDEM under this Order to the extent permitted by and in accordance with 329
IAC 6.1-4-1. See also, IC 5-14-3 et seq.,
Section 104(e)(7) of CERCLA, 42. U.S.C. § 9604(e)(7), and 40 C.F.R.
2.203(b). Records determined to be
confidential by IDEM will be accorded the protection specified in 329 IAC 6.1
and 40 C.F.R. Part 2, Subpart B. If no
claim of confidentiality accompanies records when they are submitted to the
State, or if IDEM has notified Respondent that the records are not confidential
under the standards of IC 5-14-3 et seq., or Section 104(e)(7) of CERCLA, or 40
C.F.R. Part 2, Subpart B, the public may be given access to such records
without further notice to Respondent.
52. Respondent may assert that
certain records are privileged under the attorney-client privilege or any other
privilege recognized by State or federal law.
If Respondent asserts such a privilege in lieu of providing records, it shall
provide IDEM with the following: 1) title of the record; 2) the date of the
record; 3) the name and title of the author of the record; 4) the name and
title of each addressee and recipient; 5) a description of the subject of the
record; and 6) the privilege asserted.
However, no records created or generated pursuant to the requirements of
this Order or any other settlement with the State shall be withheld on the
grounds that they are privileged.
53. No claim of confidentiality shall be made
with respect to any data, including but not limited to, all sampling,
analytical, monitoring, hydrogeologic, scientific, chemical, or engineering
data, or any other records evidencing conditions at or around the Site.
Document Submittal
54.
Documents,
including reports, approvals, notifications, disapprovals, and other
correspondence required to be submitted under Part VI.B. (Hazardous Substances
and Petroleum Compliance) of this Order may be sent by electronic transmission,
facsimile, First Class U.S. Mail, hand delivery, overnight mail, or courier
service to the following addresses or to such addresses as the Respondent or
IDEM may designate in writing. Written
notice as specified herein shall constitute complete satisfaction of any
written notice requirement of the Order with respect to IDEM and Respondent,
respectively. Either Party shall provide
any written response transmitted electronically as paper copy upon request.
Documents to be submitted to IDEM shall be sent to:
|
Dawn
Groves, Project Manager |
Barbara
Lollar, Esq. |
|
IDEM
State Cleanup Program |
IDEM |
|
Office
of Land Quality |
Office
of Legal Counsel |
|
|
|
|
MC
66-30 IGCN 1101 |
MC
60-01 IGCN 1307 |
|
|
|
|
(317)
234-0434 |
(317)
233-5942 |
Documents to be submitted to
Respondent shall be sent to:
|
The
Honorable Ernest B. Wiggins, Mayor |
David
Henderson, Utility Manager |
|
City
of |
City
of |
|
|
794
|
|
|
|
Retention of Records
55. Respondent shall preserve and retain all
records, including electronic records, now in its possession or control or that
come into its possession or control, which relate in any manner to response
actions taken at the Site or the liability of any person under IC 13-24-1-4, IC
13-25-4-8, or § 107(a) of CERCLA, 42 U.S.C. § 9607(a), with respect to the Site,
regardless of any corporate retention policy to the contrary. Such records shall be retained for a minimum
of six (6) years following the termination of this Order and for the duration
of any litigation (administrative, civil or other) relevant to this Order.
56. After the conclusion of the document
retention period in the preceding Paragraph, Respondent shall notify IDEM at
least ninety (90) days prior to the destruction of any such records, and, upon
request by IDEM, Respondent shall deliver any such records to IDEM. Respondent may assert that certain records
are privileged or confidential. If
Respondent asserts such a privilege or confidentiality claim, it shall do so in
accordance with Order Paragraph Nos. 51 and 52.
Stipulated Penalties
57. Respondent shall be liable to IDEM for
stipulated penalties in the amounts set forth below and for failure to comply
with the requirements of this Order within the specified time schedules
established by and approved under this Order or the applicable work plan. All penalties shall continue to accrue
through the final day of the correction of the noncompliance or completion of
the activity. Nothing herein shall
prevent the simultaneous accrual of separate penalties for separate violations
of this Order. The payment of penalties
shall not alter in any way Respondent’s obligation to complete the performance
of the Work required under this Order.
Payments shall be made in accordance with Order Paragraph No. 62.
58. The following stipulated penalties shall
apply per violation per day for any failure to submit a required plan, plan
modification, supplemental plan, or plan report:
Period of Noncompliance Penalty Per Violation Per Week or Part
Thereof
First four weeks $500
After four weeks $1,000
59. The
following stipulated penalties shall apply per violation per day for any
failure to comply with Work contemplated under an approved plan:
Period of Noncompliance Penalty Per Violation Per Week or Part
Thereof
First four weeks $1,000
After four weeks $2,500
60. The following stipulated penalties shall
apply per violation per day for failure to submit timely quarterly reports or
other documents not otherwise described in this section, or any other failure
to perform an activity required by this Order:
Period of Noncompliance Penalty Per Violation Per Week or Part
Thereof
First week $100
Week 2 through 4 $200
After 4 weeks $500
61. Payment of penalties shall not alter in any
way Respondent’s obligation to complete performance of the Work under this Order.
Payments
62. Respondent shall make all payments required
by Order Part B by a certified or cashiers check made payable to the “Indiana
Hazardous Substances Response Trust Fund,” unless otherwise directed by
IDEM. The check and any transmittal
letter accompanying the check shall reference the name and address of the party
making payment, the invoice number (if applicable), the Site name, and the IDEM
Site Identification Number 000000175, and shall be sent to:
|
Indiana
Department of Environmental Management |
|
Attention:
Cashier |
|
|
|
|
Any payments received by
IDEM after 12:30 p.m. Eastern Standard Time will be credited on the next
business day. A copy of the check and
payment transmittal letter shall be sent to IDEM’s Project Manager.
Emergency
Measures and Notification of Releases
63. Upon discovery by Respondent of any
imminent and substantial threat to public health or welfare or the environment
caused by releases from or related to the Site, Respondent shall notify IDEM
orally within twenty-four (24) hours
and in writing within seven (7) days of becoming aware of such a threat,
summarizing the immediacy and magnitude of the potential threat to public
health or welfare or the environment.
Within fourteen (14) days of discovery of the threat or receipt of
notice from IDEM that such a threat exists, Respondent shall submit to IDEM an
Emergency Measures Work Plan for approval that identifies measures that
mitigate the threat and a schedule to implement those measures. Respondent shall complete the work described
in the Emergency Measures Work Plan within the time specified in the approved
Emergency Measures Work Plan, unless IDEM agrees to a longer time period. In the
event that Respondent fails to take appropriate response action as required by
this Paragraph, and IDEM takes such action instead, Respondent shall reimburse
IDEM all costs of the response as set forth below:
a. Respondent
agrees to reimburse IDEM for Response Costs incurred by IDEM in connection with
the releases covered by this Order; such reimbursement shall be made within
thirty days of Respondent’s receipt of IDEM’s invoice.
b. IDEM
may periodically send to Respondent an invoice requiring payment that includes
a cost summary, including direct and indirect costs, incurred by IDEM and its
contractors. Respondent shall make all
payments within thirty (30) days of receipt of each invoice requiring payment.
c. In
the event that payments are not made within thirty days of Respondent’s receipt
of a bill, Respondent shall pay interest on the unpaid balance pursuant to IC
24-4.6-101. The interest shall begin to
accrue on the date of the bill and shall continue to accrue until the date of
payment.
d. Payments
of interest made under this Paragraph shall be in addition to other such
remedies or sanctions available to IDEM by virtue of Respondent’s failure to
make timely payments under this Section, including, but not limited to, payment
of stipulated penalties.
64. The Emergency Measures Work Plan shall
ensure that the measures are designed to remove the threat(s) to public health
or welfare or the environment and are consistent with and integrated into any
long-term solution at the Site. The
Emergency Measures Work Plan shall document the procedures to be used by
Respondent for the implementation of interim measures and shall include, but
not be limited to: the objectives of the interim measures; design,
construction, operation, monitoring and maintenance requirements; and detailed
schedules.
65. The Emergency Measures Work Plan shall
include: Emergency Measures Objectives, a Health and Safety Plan, a Sampling
and Analysis Plan, and a Community Relations Plan.
66. Notwithstanding any other provision in this
Order, in the event that any public or private water supply well at the Site,
or impacted by releases from or related to the Site, has been contaminated
above a Maximum Contaminant Level, Indiana Drinking Water criteria (as
established in 327 IAC 2-11-6) or action level (as set forth in 40 C.F.R. 141.80)
Respondent shall provide an alternate water supply to the affected parties
within five (5) days of discovery or notification by IDEM. Respondent shall continue to provide an
alternate water supply until otherwise notified by IDEM.
67. Respondent remains responsible for the
requirements of this Section (Emergency Measures and Notification of Releases),
even if IDEM has provided notice that the Work is complete under Order
Paragraph No. 41.
68. Compliance with this Section does not
relieve Respondent from having to comply with other applicable federal, State,
or local emergency measures or reporting requirements.
VII. DISPUTE RESOLUTION
69. This Part shall apply to any dispute
arising between IDEM and Respondent regarding IDEM’s rejection or modification
and approval of the Remediation Work Plan under Order Paragraphs Nos. 36 and 38 of this Order.
70. The Parties shall use their best efforts to
resolve in good faith any dispute expeditiously and informally. If, however, a dispute arises that the Parties
are unable to resolve informally, Respondent may present written notice of such
dispute to IDEM and set forth specific points of dispute and the position of
the Respondent. This written notice shall be submitted no later than five
(5) business days after the Respondent discovers the Project Managers are
unable to resolve the dispute. The
Respondent’s Project Manager will notify IDEM’s Project Manager immediately by
phone or other appropriate method of communication, prior to written notice,
when Respondent’s Project Manager believes the Parties are unable to resolve a
dispute.
71. Within ten (10) business days of receipt of
such a written notice, IDEM shall provide a written response to the Respondent
setting forth its position and the basis therefore. During the ten (10) business days following
Respondent’s receipt of IDEM’s response, the Parties shall attempt to negotiate
in good faith a resolution of their differences (the “Negotiation Period”). The Negotiation Period may be extended at the
sole discretion of IDEM.
72. Following the expiration of the Negotiation
Period, if IDEM concurs with the position of the Respondent, the Respondent
shall be notified in writing and IDEM’s action to reject or modify the
Remediation Work Plan shall be modified accordingly. If IDEM does not concur with the position of
the Respondent, IDEM, through the Assistant Commissioner of the Office of Land
Quality, shall make a determination regarding the dispute, based upon and
consistent with the purpose and terms of this Order, and shall provide written
determination of such resolution to the Respondent. In the event that such determination is not
acceptable to either Party, either Party may submit the dispute to an impartial
third party for mediation as provided by Rule 2 of the Indiana Rules of
Alternative Dispute Resolution (“ADR Rules”) in the following manner:
(a) The
Parties shall select a mediator from the Indiana Supreme Court’s approved list
of mediators as established by the Indiana Rules of Alternative Dispute Resolution
(ADR Rules) within five (5) business days of Applicant’s receipt of the
Commissioner’s determination. In the
event such a list does not exist or does not contain mediators that the Parties
agree are qualified to mediate environmental disputes, the Parties shall use a
mutually acceptable list and select a mediator within five (5) business days of
compilation of such other mutually acceptable list. In addition to the qualifications required by
the ADR Rules, the mediator shall have experience in environmental issues.
(b) The
dispute shall be initially submitted to the mediator via a written request for
dispute resolution through mediation; the written request shall be issued
within ten (10) business days after notification of the Parties of IDEM’s final
determination of the dispute, as provided by this Part. The request for assistance shall include the
written determination of the Commissioner issued pursuant to this section and
the documents specified in this Part (Dispute Resolution). A copy of the written request shall be
delivered to the other Parties at the time the request is made.
(c) The
Party which submitted the dispute to mediation may make a written submission in
support of its position to the mediator within ten (10) business days of the
mediator’s selection, and any other Party may make a written response in
support of its position within seven (7) business days thereafter. The mediator shall immediately thereafter
contact all Parties and determine the course of the mediation, including
scheduling any meetings deemed necessary.
(d) The
mediation process shall be conducted in accordance with ADR Rules in any aspect
not covered by this Order.
(e) The
mediator and the Parties shall proceed with reasonable promptness to resolve
the dispute.
(f) All
communications, whether oral or written, between the mediator and the Parties,
shall be kept confidential in accordance with ADR Rule 2.12, and to the extent
allowed under
(g) The
cost of the mediator shall be paid by the Respondent. IDEM’s costs of mediation
shall be included in the costs paid by the Respondent, except to the extent
that the mediator determines that IDEM acted unreasonably. The Respondent shall pay the Respondent’s
costs of mediation.
73. If either Party determines or the mediator
declares that the dispute cannot be resolved through the mediation process, the
Parties retain all rights under the Indiana Administrative Orders and
Procedures Act, IC 4-21.5.
74. Until the dispute is resolved, any actions
concerning that element of the proposed Remediation Work Plan in dispute shall
be deferred. The resolution of the
dispute shall be incorporated into the Remediation Work Plan and made an
enforceable part thereof. The time
schedule for the Work in dispute shall be extended, if necessary, by the amount
of time needed for resolution. Elements
of Work and/or obligations not affected by the dispute shall be completed in
accordance with the schedule contained in the Remediation Work Plan.
XIII. RELEASES BY IDEM
75. In consideration of the actions that will
be performed and the payments that will be made by Respondent under the terms
of this Order, and except as otherwise specifically provided herein, this Order
resolves claims or action(s) IDEM has, had, or may have against Respondent
concerning the alleged violations in the Findings of this Order pursuant to IC 13-23, IC 13-25-4, and IC 13-24-1 for
releases of Hazardous Substances and Petroleum addressed by the Remediation
Work Plan, and IC 13-30, 13-15-5-1(1), IC 13-18, and 327 IAC 5. This release shall take effect upon the
Effective Date and is conditioned upon the complete, continuing, and
satisfactory performance by Respondent of its obligations under this Order,
including, but not limited to, Emergency Measures and Notification of Releases
pursuant to Order Paragraph Nos. 63 through 68.
This provision extends only to the Respondent and does not extend to any
other person.
IX. RESERVATION OF RIGHTS BY STATE
77. Except as specifically provided in this
Order, nothing herein shall limit the power and authority of IDEM or the State
of Indiana to take, direct, or order all actions necessary to protect public
health, welfare, or the environment, or to prevent, abate, or minimize an
actual or threatened release of Hazardous Substances, Petroleum, or hazardous
or solid waste, on, at or emanating from the Site. Further, nothing herein shall prevent IDEM
from seeking legal or equitable relief to enforce the terms of this Order, or from
taking other legal or equitable action as it deems appropriate and necessary or
from requiring Respondent in the future to perform additional activities
pursuant to IC 13-25-4, IC 13-23 and IC 13-24-1 or any other applicable law.
78. The State of
a. claims
based on a failure by Respondent to meet a requirement of this Order;
b. any
liability resulting from actions of this Order that exacerbate the condition of
any contamination, including contamination addressed by the Remediation Work
Plan, other than exacerbation resulting from the Work required by an
IDEM-approved Remediation Work Plan or IDEM-approved Emergency Measures Work
Plan;
c. liability
for damages for injury to, destruction of, or loss of natural resources, and
for the costs of any natural resources damage assessments, pursuant to 42
U.S.C. § 9601 et seq., 33 U.S.C. § 1251 et seq., or 33 U.S.C. § 2701 et seq.;
d. any liability resulting from future
releases of Hazardous Substances or Petroleum at or from the Site;
e. liability
arising from the past, present, or future disposal, release or threat of
release of Hazardous Substances or Petroleum not addressed by the Remediation
Work Plan;
f. liability
arising from the release of Petroleum from an underground storage tank or
arising under IC 13-23 not covered under this or another State order;
g. liability
arising from the release of Hazardous Substances or Petroleum at or from
Respondent’s waste water treatment plant located at C.R. 150 North (Plant 2, NPDES Permit No. IN0060917); and
h. liability for violations of local, State, or federal law or
regulations except for those explicitly resolved by this Order.
79. In the event that IDEM determines that
Respondent has ceased implementation of any portion of the Work, is materially
or repeatedly deficient or late in its performance of the Work, or is
implementing the Work in a manner which may cause an endangerment to public
health or welfare or the environment, IDEM may assume the performance of all or
any portion of the Work as IDEM determines necessary and seek recovery of costs
and punitive damages as allowed by statute, including IC 13-24-1-4, IC 13-23-13-8,
IC 13-25-4-10, IC 13-23-14-4, and IC 13-30.
Costs incurred by IDEM in performing the Work pursuant to this Paragraph
shall be considered Response Costs that Respondent shall pay in accordance with
the procedures set forth in Order Paragraph No. 63. Notwithstanding any other provision of this
Order, IDEM retains all authority and reserves all rights to take any and all
response actions authorized by law. IDEM
may also recover the reasonable costs of any contractor hired to assist IDEM in
the oversight or implementation of this Order, including the review of
documents or reports submitted by Respondent pursuant to this Order.
80. Nothing in this Order
shall be construed as prohibiting, altering, or in any way limiting the ability
of IDEM to seek any other remedies or sanctions available by virtue of
Respondent’s violation of this Order or the statutes
and regulations upon which it is based, except that IDEM shall not seek
civil penalties for any violation for which a stipulated penalty is provided
herein.
81. This Order does not constitute any decision
on preauthorization of funds under IC 13-25-4-1(6) IC 13-25-4-23(b), CERCLA §§
106(b), 111, or 112 (42 U.S.C. §§ 9606(b), 9611, or 9612), or 40 C.F.R. §
300.700(d).
82. Respondent remains responsible for the
continuing obligations of the following provisions of this Order, even if IDEM
has provided notice that the Work is complete under Order Paragraph No.
41: Order Paragraph Nos. 46 through 49
(Site Access); Order Paragraph Nos. 50 through 53 (Access to
Information); Order Paragraph Nos. 55 and 56 (Retention of Records); Order
Paragraph No. 62 (Payments); Order Paragraph Nos. 57 through 61 (Stipulated
Penalties); and Order Paragraph Nos. 63 through 68 (Emergency Measures and
Notification of Releases).
X.
RELEASES BY RESPONDENT
83. In consideration of the liability
protection provided by this Order, Respondent
hereby holds harmless and covenants not to sue and assert any claims or causes
of action against IDEM and the State of Indiana, its agencies, departments,
instrumentalities, authorized officers, employees, or representatives related
to the Work, Response Costs, or this Order,
including but not limited to:
(a). any
direct or indirect claim for reimbursement from the Indiana Hazardous
Substances Response Trust Fund based on IC 13-25-4-1(6) and IC 13-25-4-23(b) or
the EPA Hazardous Substance Superfund based on CERCLA §§ 106(b)(2), 107, 111,
112, or 113, 42 U.S.C. §§ 9606(b)(2), 9607, 9611, 9612, or 9613, or any other
provision of law;
(b) any claim
arising out of response actions at or in connection with the Site, including
any claim under the United States Constitution, the Indiana Constitution, IC
34-13-1-1, the Tucker Act, 28 U.S.C. § 1491, the Equal Access to Justice Act,
28 U.S.C. § 2412, as amended, or at common law; or
(c). any
claim against the State pursuant to Sections 107 and 113 of CERCLA, 42. U.S.C.
§§ 9607 and 9613, relating to the Site.
84. These releases shall not apply in the event
that the State brings a cause of action or issues an order pursuant to the
reservations set forth in Order Paragraph Nos. 71(b) or (d) through (h), but
only to the extent that Respondent’s claim arises from the same response action
or response costs that the State is seeking pursuant to the applicable reservation.
XI. INDEMNIFICATION
85. Respondent shall further indemnify, save
and hold harmless the State of Indiana, its agencies, departments,
instrumentalities, authorized officers, employees, or representatives from any
and all claims or causes of action arising from, or on account of, negligent or
other wrongful acts or omissions of Respondent, its officers, directors,
employees, agents, contractors, or subcontractors, in carrying out actions
pursuant to this Order. In addition, Respondent agrees to pay the
State of Indiana all costs incurred by the State, including but not limited to
attorneys fees and other expenses of litigation and settlement, arising from or
on account of claims made against the State based on negligent or other
wrongful acts or omissions of Respondent, its officers, directors, employees,
agents, contractors, subcontractors and any persons acting on its behalf or
under its control, in carrying out activities pursuant to this Order.
Respondent further waives all other statutory and common law claims
against IDEM relating to this Order, including, but not limited to,
contribution and counterclaims relating to or arising out of conduct of the
work contemplated in this Order.
86. The State shall give Respondent notice of
any claim for which the State plans to seek indemnification pursuant to this Part
and shall consult with Respondent prior to settling such claim.
87. IDEM has
no obligations to defend Respondent in any suit, demand, or claim for
contribution or for any matters arising from the release or threatened release
of Hazardous Substances or Petroleum from the Site or arising out of any
response action at the Site.
XII.
OTHER CLAIMS
88. IDEM and Respondent intend that nothing in
this Order shall be construed as an admission or as a waiver of any defenses in
any dispute or action between Respondent and IDEM or any third party, except
that Respondent agrees that it will not challenge the Findings, or any other
terms or provisions of the Order in any proceedings in which IDEM seeks to
enforce Respondent’s obligations under this Order.
89. By issuance of this Order, IDEM and the
State assume no liability for injuries or damages to persons or property
resulting from any acts or omissions of Respondent. Neither IDEM nor the State shall be deemed or
held out as a party to any contract entered into by Respondent or its
directors, officers, employees, agents, successors, representatives, assigns,
contractors, or consultants in carrying out actions pursuant to this Order. Neither Respondent nor its directors,
officers, employees, agents, successors, representatives, assigns, contractors,
or consultants shall be considered an agent of IDEM or the State.
90. Nothing shall prevent IDEM from
communicating any information about the Site or the work performed under this Order, other than information declared confidential
or privileged pursuant to Order Paragraph Nos. 51 and 52, to the EPA or any
other agency. IDEM, or anyone acting on
its behalf, shall not be held liable for any costs or penalties Respondent may
incur as a result of any such communication with EPA or any other agency.
91. This Order neither constitutes a finding by
IDEM as to the risks (or lack of risks) to human health and the environment
that may be posed by contamination at the Site nor constitutes any
representation by IDEM that the Site is fit for any particular purpose.
XIII. CONTRIBUTION PROTECTION
92. The Parties agree that Respondent is
entitled to protection from contribution actions or claims as provided by IC
13-25-4-27, CERCLA § 113(f)(2) (42 U.S.C. § 9613(f)(2)), and any other laws for
matters addressed in the response action.
Nothing in this Order precludes IDEM or the Respondent from asserting
any claims, causes of action, or demands against any persons not parties to
this Order for indemnification, contribution, subrogation, or cost recovery.
93. Nothing in this Order shall be construed to
effect or waive claims for contribution, cost recovery, damages, or indemnity
brought by Respondent under Federal or State statute or common law against
parties other than Complainant.
Respondent shall have the right to bring all such claims to the extent
allowed by law against parties who are not parties to this Order.
XIV.
MISCELLANEOUS PROVISIONS
94. The Paragraphs of this Order shall be
severable. Should any part of this Order
be declared invalid or unenforceable, the remainder shall continue in full
force and effect between the parties.
95. This Order shall constitute the entire
integrated agreement of the Parties. No
prior or contemporaneous communications or prior drafts shall be relevant or
admissible for purposes of determining the meaning or extent of any provision
herein in any litigation or other proceeding.
No modifications or amendments of this Order shall be effective unless
they are set out in writing and signed by the parties to this Order.
96. The Respondent shall cause all work or
required reporting to be performed within the time limits set forth in the
appropriate plans, unless performance is delayed by events that constitute a
force majeure. For purposes of this
Order, a force majeure is an event arising from circumstances beyond the
reasonable control of the Respondent, or of any entity controlled by
Respondent, including but not limited to its contractors or subcontractors,
which delays or prevents performance of any obligations required by this
Order. Increased cost of performance
shall not be considered an event of force majeure.
97. The Respondent shall notify IDEM by calling
IDEM’s Project Manager within three (3) calendar days and by writing no later
than seven (7) calendar days after discovering any event that 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 have
the burden of demonstrating that the event is a force majeure. IDEM shall make
the final decision of whether an event is a force majeure event.
98. If IDEM agrees that the delay or
anticipated delay is attributable to a force majeure event, the time for
performance of the obligations under this Order
that are affected by the force majeure event will be extended by IDEM for such
time as is necessary to complete those obligations. An extension of time for performance of the
obligations affected by the force majeure event shall not, of itself, extend
the time for performance of any other obligation. If IDEM does not agree that
the delay or anticipated delay has been or will be caused by a force majeure
event, IDEM will notify Respondent in writing of its decision. If IDEM agrees that the delay is attributable
to a force majeure event, IDEM will notify Respondent in writing of the length
of extension, if any, for performance of the obligations affected by the force
majeure event.
XV.
MODIFICATION AND TERMINATION OF ORDER
99. This Order may be amended by mutual
agreement of Complainant and Respondent.
Amendments shall be in writing and shall be effective when signed by the
Commissioner of IDEM and by Respondent.
100. This Order may be terminated after: (a) IDEM has determined that Respondent has
completed all Work in accordance with
this Order, with the exception of any
continuing obligations required by this Order
(such as operation and maintenance, post-removal site controls, access, and
record retention), and (b) Respondent has paid all penalties, Response Costs or
other monetary obligations due hereunder and no penalties or other monetary
obligations are outstanding or owed to the State.
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Attachment A
Contaminants of Concern*
Miscellaneous
Grain Size
Total Solids
Total Volatile Solids
pH
Cyanide (total and free)
Total Phenols**
Nutrients
Phosphorous
Orthophosphate
Ammonia as N
Nitrate
Nitrogen
TKN
TOC
Metals
Antimony
Arsenic
Barium
Beryllium
Cadmium
Chromium
Copper
Lead***
Mercury
Nickel
Selenium
Silver
Thallium
Zinc
Polychlorinated Biphenyls (PCBs)
PCB-1016
PCB-1221
PCB-1232
PCB-1242
PCB-1248
PCB-1254
PCB-1260
PCB-1262
PCB-1268
Polynuclear Aromatic Hydrocarbons (PAHs)***
Volatile Organic Compounds (VOCs)
Total Petroleum Hydrocarbons (TPH)****
Benzene, toluene,
ethylbenzene, xylene (BTEX)****
Methyl tertiary butyl ether
(MTBE)****
*IDEM may request that other
parameters be added to this list in the event that there were Significant
Industrial Users (SIUs) discharging to the POTW in 2002 that discharged
pollutants other than those listed in this Attachment A.
**Sampling for total phenols
shall be included in any sampling activity conducted after the Effective Date
of this Order unless IDEM has determined that such sampling is unnecessary
based on credible studies conducted by or submitted by the Respondent
demonstrating that total phenols are not a risk to human health or the
environment.
***Sampling for lead and
PAHs shall be conducted for both the LUST releases and the releases to
****Sampling for TPH, BTEX
and MTBE is only required in connection with the LUST releases.
Attachment B
EPA comments on Respondent’s
Pretreatment Program:
1. Respondent
must technically justify the proposed elimination of parameters from its sewer
use ordinance (SUO). Specifically,
Respondent must provide an assessment that there are no NPDES permit standards,
sludge requirements, Water Quality Standards or the potential for interference
from these pollutants. If applicable
environmental criteria do exist for these pollutants, a headworks evaluation
should be completed.
2. Upon
EPA approval of any revisions to Respondent’s local limits, the SUO and
industrial user (IU) permits will need to be revised to incorporate the
revisions.
3. Upon
EPA approval of the revised SUO, Respondent should request that the Town of
Winona Lake revise its SUO for conformity.
The interjurisdictional agreement should be amended to clearly indicate
which jurisdiction will be responsible for pretreatment program implementation
activities within the Town of Winona Lake.
4. Respondent
should consider making pretreatment staff a part of the planning and zoning
design review and approval process to assure that adequate wastewater
pretreatment is provided by commercial and industrial businesses, and to assure
that the industrial pretreatment program is aware of the need for new or
modified permits.
5. Respondent
should consider the preparation and maintenance of a summary of Significant
Industrial Users (SIUs) that provides the name, address, phone number, contact
person, products manufactured at the facility, the categorical industry
applicable to the SIU and regulatory citation, whether the Categorical
Industrial User (CIU) is a new or existing source, the regulated wastewater
generating processes of concern, the average daily flow, the type of wastewater
pretreatment provided, and which the wastewater treatment plants receive flow
from the industry.
6. Respondent
shall thoroughly examine the characteristics of each IU on an ongoing basis and
make appropriate changes to the permit based on the information in the IU’s
permit application and inspections of the IU.
Reissued permits must reflect the current operations and applicable
standards and requirements. Respondent should review the permit
applications to assure that appropriate information is being collected for
up-to-date permit issuance.
7. Respondent
should consider that new permits be modified to reflect that IDEM does not have
a lab certification program. It is
recommended that the permits require IUs to only use labs that analyze samples
according EPA approved method (40 CFR 136).
8. If it
is Weed Septic’s intent to only handle domestic waste, and grease from
restaurant grease traps, its permit must be modified to prohibit acceptance of
any other waste. It is also recommended
that the requirement for Weed Septic to report monthly on the sources and
volume of wastewater collected or accepted for treatment be retained, or that
the IU at least be required to retain that information. If Weed Septic wishes to accept metal-bearing
or other industrial waste, it would be subject to the centralized waste
treatment regulations, 40 CFR 437.
9. It is
strongly recommended that permit fact sheets be developed for all new permits.
10. Dalton
and Warsaw Foundry permits must be evaluated using current production data to
verify that permit limitations are appropriate (i.e., that the limits are based
on the production-based standards in Part 464 multiplied by the average
production rate). If the limits appear
incorrect, the permits will need to be revised.
Respondent should compare the limits based on categorical standards with
local limit and select the limit that is more stringent taking into
consideration the appropriate sampling point for local limits and categorical
pretreatment standards, regulated, non-regulated and dilute wastestreams,
and the need for the application of the combined wastestream formula.
11. Respondent
must include a requirement in the Dalton Foundry and Warsaw Foundry permits for
these industries to provide applicable, up-to-date average production data
(pounds of metal poured, pounds of sand reclaimed, and standard cubic feet of
air scrubbed) and wastewater flow rates in the self-monitoring reports required
of all CIUs under 40 CFR 403.12 (e).
Where production rates change significantly (i.e. +/- 20%), permit
limits would need to be revised. Upon
receipt of production data, Respondent must review and, if necessary, revise
the permit limits for these CIUs.
12. It is
recommended that all CIUs be required to measure wastewater flow to the
sanitary sewer from regulated and unregulated processes. The permit should emphasize the proper
installation, calibration, and maintenance of flow monitoring equipment.
13. Respondent
is required to conduct an annual inspection at each SIU and document the
findings as required by 40 CFR 403.8(f)(2)(v) &(vi).
14. It is
recommended that Respondent resume its use of the more thorough, multi-page
inspection form for all SIU inspections.
It is further recommended that the inspection form be modified to add
questions regarding the status of slug discharge control plans. Since the development of a slug discharge
control plan has been made a requirement of all SIUs, the inspection form
should ask the SIU to produce a copy of the plan. Additional questions should be added that
assess whether there is a need to revise the slug discharge control plan.
15. Respondent
must make sure that all necessary information on its chain-of-custody forms is
clearly documented to insure the integrity of sample results. It is recommended that Respondent require IUs
to submit complete chain-of-custody forms along with self-monitoring reports to
assure integrity of sample collection.
16. Respondent
must assure that all CIUs are submitting certification statements with
self-monitoring reports signed by authorized individuals in the company as
defined by 40 CFR 403.12 (l).
17. It is
recommended that Respondent develop a written standard operating procedure for
field sampling activities. It is further
recommended that Respondent begin using a field sampling log to document
details of sampling events and to validate the representativeness and integrity
of samples collected. The field log book
serves as a daily journal of information on field sampling activities that may
be helpful in characterizing the representativeness of sample results. Details to include are the date, time of
sample, number of samples collected, time of first sample, amount of sample
collected, wastewater flow at characteristics of the wastewater collected,
odors/color, sample location, production activity at the industry, etc.
18. It is
recommended that Respondent’s violation letters require the IU to evaluate the
violation and provide the City with a plan for addressing the problem.
19. Respondent
should implement a cost accounting program to allow for the tracking of costs
to each program, including pretreatment.
This cost accounting program could be used to recover the cost of the
program from the industries should they choose to do so. Additionally,
Respondent may want to consider reimplementing the surcharge program (surcharge
program has been eliminated from newly revised SUO).