STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT
) SS: OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION )
COMMISSIONER OF THE DEPARTMENT )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
)
v. ) CASE NO. 2002-12422-W
)
TOWN OF ADVANCE, )
)
Respondent. )
AGREED ORDER
The Complainant and the Respondent desire to settle and compromise this action without hearing or adjudication of any issue of fact or law, and consent to the entry of the following Findings of Fact and Order.
I. FINDINGS OF FACT
1. Complainant is the Commissioner (hereinafter referred to as "Complainant") of the Indiana Department of Environmental Management, a department of the State of Indiana created by IC 13-13-1-1.
2. The Respondent is the Town of Advance ("Respondent"), which owns and operates a sewage collection system and 0.039 MGD oxidation ditch wastewater treatment plant with clarifier and effluent chlorination/dechlorination facilities located East of SR 75 on CR 400S, approximately 1 1/2 miles South of Advance, Indiana, in Boone County. The facility is authorized by National Pollutant Discharge Elimination System (NPDES) Permit IN0039705 ("the Permit") to discharge to receiving waters named Big Raccoon Creek in accordance with effluent limitations, monitoring requirements, and other conditions. The sewage collection system is comprised of 100% separate sanitary sewers with no overflow points.
3. The Indiana Department of Environmental Management ("IDEM") has jurisdiction over the parties and subject matter of this action.
4. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation, via Certified Mail to:
Ms. Carolyn Booher, President
Town Council of Advance
Town Hall, 112 N. Main St.
P.O. Box 67
Advance, IN 46102-0067
5. A records review for the period of January 2001 through December 2002 was conducted by a representative of IDEM. The following violations were in existence or observed at the time of this review:
A. Pursuant to Indiana Code IC 13-30-2-1, a person may not discharge, emit, cause,
allow, or threaten to discharge, emit, cause, or allow any contaminant or waste, including any noxious odor either alone or in combination with contaminants from other sources, into the environment in any form that causes or would cause pollution that violates or would violate rules, standards, or discharge or emission requirements adopted by the appropriate board under the environmental management laws.
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 the state, or to cause, permit or suffer to be thrown, run, drained, allowed to seep, or otherwise disposed into any waters any organic or inorganic matter that shall cause or contribute to a polluted condition of any waters.
Pursuant to 327 IAC 5-2-8 and Part II.A.1 of the Permit, the Respondent is required to do the following:
* Comply with all terms and conditions of the permit.
* Take all reasonable steps to minimize or correct any adverse impact on the environment resulting from noncompliance with the permit.
* At all times maintain in good working order and efficiently
operate all facilities and systems (and related appurtenances)
for collection and treatment that are installed and used by the
permittee and which are necessary for achieving compliance
with the 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, at all times, maintain in good working order and efficiently operate all waste collection, control, treatment, and disposal facilities.
Pursuant to 327 IAC 2-1-6(a)(1), the following are minimum water quality conditions:
All waters at all times and at all places, including the mixing zone, shall meet the minimum conditions of being free from substances, materials, floating debris, oil or scum attributable to municipal, industrial, agricultural, and other land use practices, or other discharges:
(E) which are in concentrations or combinations that will
cause or contribute to the growth of aquatic plants or algae to such a degree as to create a nuisance, be
unsightly, or otherwise impair the designated uses.
The Respondent's wastewater treatment plant received flows in excess of its design treatment capacity of 0.039 million gallons per day (mgd) as reported on the Discharge Monitoring Reports as follows: 0.057 mgd for February 2001, 0.049 mgd for October 2001, 0.047 mgd for February 2002, 0.055 mgd for March 2002, and 0.062 mgd for May 2002, which indicates failure to control inflow and infiltration in the collection system, in violation of 327 IAC 5-2-8(8) and Part II.B.1 of the Permit.
The Respondent reported to IDEM that washouts of the wastewater treatment plant secondary treatment units occurred during heavy rains and the design capacity of the treatment plant was exceeded on February 10-13, 2001, February 15-16, 2001, February 26-27, 2001, December 16-18, 2001, January 31, 2002, May 5-9, 2002, and May 12-15, 2002. These washouts are a threat to pollute the receiving stream. On December 19, 2001, a representative of IDEM conducted an inspection of the Advance wastewater treatment plant and he noted that during heavy rain events plant washouts occur and observed some sludge in the creek at the location of the wastewater treatment plant effluent discharge. These plant washouts and discharge of sewage solids to Big Raccoon Creek are in violation of IC 13-30-2-1, IC 13-18-4-5, 327 IAC 5-2-8(8), 327 IAC 2-1-6(a)(1), 327 IAC 5-2-8(1), and Part II. A. 1 and Part II. B.1 of the Permit.
B. 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 Part I.B.1 of the Permit, samples and measurements taken as required
by the Permit shall be representative of the volume and nature of the monitored discharge.
A records review of the Respondent's Monthly Reports of Operation revealed that the facility did not sample the effluent for Total Suspended Solids or BOD during the wastewater treatment plant washouts on December 16, 17 and 18, 2001 and January 31, 2002 and February 1, 2002, and therefore did not take samples representative of the nature of the discharge. These failures to take samples during plant washouts are in violation of 327 IAC 5-2-8(1), Part II.A.1. of the Permit, and Part I.B.1 of the Permit.
6. In recognition of the settlement reached, the Respondent waives any right to administrative and judicial review of this Agreed Order.
II. ORDER
1. This Agreed Order shall be effective ("Effective Date") when it is approved by the Complainant or her delegate, and has been received by the Respondent. This Agreed Order shall have no force or effect until the Effective Date.
2. The Respondent shall comply with all applicable provisions of the Indiana Code (IC) and Indiana Administrative Code (IAC), including, but not limited to, IC 13-30-2-1, IC 13-18-4-5, 327 IAC 5-2-8, 327 IAC 2-1-6(a)(1), and the Permit.
3. Within 90 days of the Effective Date of this Agreed Order, the Respondent shall submit to IDEM for its approval a "Compliance Plan" that identifies actions that it will take to cease wastewater plant washouts, comply with the NPDES Permit representative sampling requirements, identify and reduce Inflow and Infiltration (I/I) in the sewage collection system, and eliminate hydraulic overloading of the wastewater treatment plant clarifier. The Compliance Plan shall include an implementation and completion schedule, including specific milestone dates for addressing the above items.
4. The Respondent shall, within 12 months of completion of the Plan required by
Paragraph 3 above (Performance Period), demonstrate 11 consecutive months of compliance (Compliance Demonstration) by having no plant washouts and complying with all terms of the NPDES permit and with 327 IAC 5-2-8 and IC 13-18-4-5. During the Performance Period, the Respondent shall be subject to stipulated penalties, as specified below. In the event that Respondent fails to make the Compliance Demonstration, Respondent shall, within sixty days of becoming aware that the Compliance Demonstration cannot be achieved, develop and submit to IDEM, for approval, a plan which identifies the additional actions that Respondent will take to achieve and maintain collection system compliance. The "Additional Action Plan", if required, shall include an implementation and completion schedule, including specific milestone dates.
5. The plans required by Paragraphs 3 and 4 above are subject to IDEM approval. If IDEM deems a plan inadequate, a revised plan shall be submitted within fifteen days of receipt of notice from IDEM of the inadequacies. If, after submission of the revised document, IDEM still finds the document to be inadequate, then IDEM will request further modification of the plan as necessary to meet IDEM=s requirements. If the subsequently submitted modification of the 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 the IDEM-suggested modifications are not incorporated into the plan by the Respondent or an alternative adequate plan is not submitted by the Respondent by the specified date, the Respondent will be subject to stipulated penalties as described below. The Respondent, upon receipt of written notification from IDEM, shall immediately implement the approved plan and adhere to the milestone dates therein. The approved Plan and Additional Action Plan shall be incorporated into the Agreed Order and shall be deemed an enforceable part thereof.
6. Beginning on the Effective Date of this Agreed Order and continuing until the completion of the Plan provided for by Paragraph 3 above, the Respondent shall operate its existing wastewater collection system as efficiently and effectively as possible, at all times.
7. All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:
Paul Cluxton, Enforcement Case Manager
IDEM, Office of Enforcement
100 North Senate Avenue
P.O. Box 6015
Indianapolis, IN 46206-6015
8. The Respondent is assessed a civil penalty of One Thousand Nine Hundred Dollars ($1,900). Said penalty amount shall be due and payable to the Environmental Management Special Fund within 30 days of the Effective Date of this Agreed Order.
9. In the event the terms and conditions of the following Order paragraphs are violated, the Complainant may assess and the Respondent shall pay a stipulated penalty in the following amount:
Paragraph Violation Penalty
|
Order Paragraph 3 |
Failure to submit Compliance Plan within the required timeframe |
$500 per week late |
|
Order Paragraph 4 |
Failure to comply with 327 IAC 5-2-8 and IC 13-18-4-5 during the Performance Period |
$1000 per event |
|
Order Paragraph 4 |
Failure to timely submit Additional Action Plan, if required |
$500 per week late |
|
Order Paragraph 5 |
Failure to comply with any milestone date identified in the approved plan(s) |
$500 per week late |
|
Order Paragraph 6 |
Failure to operate wastewater system as efficiently as possible |
$500 per violation |
10. Stipulated penalties shall be due and payable within 30 days after the Respondent receives written notice that the Complainant has determined a stipulated penalty is due. Assessment and payment of stipulated penalties shall not preclude the Complainant from seeking any additional relief against the Respondent for violation of the Agreed Order. In lieu of any of the stipulated penalties given above, the Complainant may seek any other remedies or sanctions available by virtue of the Respondent's violation of this Agreed Order, or Indiana law, including but not limited to civil penalties pursuant to IC 13-30-4.
11. 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
Indiana Department of Environmental Management
100 N. Senate Avenue
P. O. Box 7060
Indianapolis, IN 46207-7060
12. In the event that the civil penalty required by Order Paragraph 8 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.
13. This Agreed Order shall apply to and be binding upon the Respondent, its successors, and assigns. The Respondent's signatories to this Agreed Order certify that they are fully authorized to execute this document and legally bind the party they represent. No change in ownership, corporate, or partnership status of the Respondent shall in any way alter its status or responsibilities under this Agreed Order.
14. In the event that any terms of the Agreed Order are found to be invalid, the remaining terms shall remain in full force and effect and shall be construed and enforced as if the Agreed Order did not contain the invalid terms.
15. The Respondent shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights are transferred. The Respondent shall ensure that all contractors, firms and other persons performing work under this Agreed Order comply with the terms of this Agreed Order.
16. The provisions of this Agreed Order do not affect the limitations and requirements set forth in the Respondent's NPDES Permit. Efforts by the Respondent to comply with provisions of this Agreed Order shall not serve as justification for not complying with limitations and requirements set forth in its NPDES Permit.
17. The Complainant does not, by its approval of this Agreed Order, warrant or aver in any manner that the Respondent's compliance with any aspect of this Agreed Order will result in compliance with the provisions of the Clean Water Act, its NPDES Permit or state law.
18. "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 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 (3) calendar days and by writing no later than seven (7) 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 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.
IDEM agrees that, 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.
19. This Agreed Order shall remain in effect until the Respondent has complied with all terms and conditions of this Agreed Order Paragraphs 3 through 12 and IDEM issues a close-out letter to the Respondent.
TECHNICAL RECOMMENDATION: RESPONDENT:
Department of Environmental Management Town of Advance
By: ______________________________ By: ______________________________
Mark W. Stanifer
Section Chief, Water Section Printed: _ Carolyn Booher ________
Office of Enforcement
Title: __Town Council President
Date: _______________________________ Date: ______________________________
COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:
Department of Environmental Management
By: ______________________________ By: ______________________________
Joseph H. Merrick
Office of Legal Counsel
Date: ______________________________ Date: ______________________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _______________ DAY OF __________________________, 2003.
For The Commissioner:
___(Signed July 28, 2003)____
Felicia A. Robinson
Deputy Commissioner
For Legal Affairs