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STATE OF |
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BEFORE THE INDIANA
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COMMISSIONER OF THE
DEPARTMENT Complainant, v. TOWN OF Respondent. |
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AMENDED AGREED ORDER
Complainant and Respondent
desire to settle and compromise this action without hearing or adjudication of
any issue of fact or law, and consent to the entry of the following Findings of
Fact and Order. Pursuant to IC
13-30-3-3, entry into the terms of this Agreed Order does not constitute an
admission of any violation contained herein.
The Respondent's entry into this Agreed Order shall not constitute a
waiver of any defense, legal or equitable, which Respondent may have in any
future administrative or judicial proceeding, except a proceeding to enforce
this Order.
I.
FINDINGS OF FACT
1.
Complainant is
the Commissioner (“Complainant”) of the Indiana Department of Environmental
Management (“IDEM”), a department of the State of
2. Respondent
is the Town of Cloverdale (“Respondent”), which owns
and operates a Publicly Owned Treatment Works that includes a wastewater
treatment plant (WWTP), located on North West Street, Cloverdale, in Putnam
County, Indiana. The Respondent is
authorized by NPDES Permit No. IN 0022616 (the
Permit) to discharge treated wastewater to receiving
waters named Rabbit Run, in accordance with effluent limitations, monitoring
requirements, and other conditions set forth in the Permit.
3. IDEM
has jurisdiction over the parties and the subject matter of this action.
4. Pursuant
to IC 13-30-3-3, IDEM issued a Notice of Violation on May 16, 2003 via
Certified Mail to:
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Mr. John Davis |
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Town Council President |
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Town of |
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5. IDEM
approved and adopted as the Department’s Final Order, Agreed Order, Case No. 2002-12423-W,
with the Respondent on June 16, 2004. The Agreed Order included an outline of
the Respondent’s violations of 327 IAC 2, 327 IAC 3, 327 IAC 5, IC 13-18-4-5,
IC 13-30-2-1, and the Permit that had occurred, a outline of the correction
actions contained in a Compliance Plan that the Respondent was to complete, and
an assessment of a civil penalty.
6. In accordance with provisions of the Agreed Order, the
Respondent paid the civil penalty and initiated the corrective actions
necessary to achieve and maintain compliance with the terms and conditions of
the Permit required by Item 3 of the Order.
The Respondent completed the Collection System Improvements, the Lift
Station Improvements, and the Phase I WWTP Improvements outlined in the
Compliance Plan.
On September 15, 2006, IDEM approved the Phase II WWTP Improvements outlined in
the Compliance Plan, which required the Respondent to commence construction of
the wastewater treatment plant improvements in December of 2006 and to complete
construction in December of 2007. The bids
for the construction of the Phase II WWTP Improvements were higher than
expected, causing the Respondent to obtain additional financing and to
re-evaluate its improvement plan, which delayed the start of construction. However, the Respondent signed contracts for
the Phase II WWTP Improvements on March 7, 2007, and Notice to Proceed was
issued on March 17, 2007. The delay in
initiating construction resulted in delaying the target date for completion of
construction until March 16, 2008.
7. The
Respondent has submitted reports of bypasses of sewage from bypass location
outfall 102 and/or overflows of sewage from manholes or lift stations that occurred
during 48 days in 2005, during 62 days in 2006, and during 24 days from January
1 through April 14, 2007, in violation of 327 IAC 5-2-8(1) and Part II.A.1 of
the Permit and in violation of 327 IAC 5-2-8(11) and Part II.B.2 of the Permit.
8. Pursuant
to 327 IAC 2-1-6(a) and Part I.A.2 of the Permit, 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:
a. that
will settle to form putrescent or otherwise objectionable deposits;
b. that
are in amounts sufficient to be unsightly or deleterious;
c. that
produce color, visible oil sheen, odor, or other conditions in such degree as
to create a nuisance;
d. which
are in amounts sufficient to be acutely toxic to, or to otherwise severely
injure or kill aquatic life, other animals, plants, or humans; and
e. which
are in concentrations or combinations that will cause or contribute to the
growth of aquatic plants or algae to such degree as to create a nuisance, be
unsightly, or otherwise impair the designated uses.
An
inspection conducted by IDEM staff on March 14, 2007, indicated that the
receiving stream below the outfall of the Respondent's WWTP contained sewage
sludge, in violation of 327 IAC 2-1-6(a) and Part I.A.2 of the Permit.
9. On
May 2, 2007, the Respondent's representatives met with IDEM staff and discussed
the possibility of proceeding with some new facilities that would need a
connection to the Respondent's sewer collection system and would need
construction permits pursuant to 327 IAC 3-2-1 from IDEM. The Respondent's representatives considered
these facilities important for the continued growth of its community and the
failure to proceed with these projects would be a hardship for the Town of
IDEM agreed to issue variances from the capacity certification as long as the
Respondent enters into an Agreed Order that requires the Respondent to develop
and submit storm water inflow and infiltration (I&I) removal projects to
IDEM for approval. Then following
completion of each approved storm water I&I removal project, IDEM would
approve credits for the Respondent to apply for variances from the required capacity
certifications for new connections into the Respondent's sanitary sewer
projects. The credits would be granted
allowing one gallon of new sewer connection into the sanitary sewer system for
every 5 gallons of storm water removed.
10. In
recognition of the settlement reached, 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 Complainant
or Complainant’s delegate, and has been received by Respondent. This Agreed Order shall have no force or
effect until the Effective Date.
2.
Respondent shall
comply with 327 IAC 5-2-8(1) and Part II.A.1 of the Permit, 327 IAC 5-2-8(11)
and Pat II.B.2 of the Permit, Part I.A.1 of the Permit, Part I.B.2 of the
Permit, Part I.B.3 of the Permit, 327 IAC 2-1-6(a) and Part I.A.2 of the
Permit, IC 13-18-4-5, IC 13-30-2-1(1), 327 IAC 5-2-8(8) and Part II.B.1 of the
Permit, and 327 IAC 3-2-1.
3. Respondent
shall complete its Phase II WWTP Improvements referenced in Findings of Fact Paragraph 6 by
March 16, 2008. Within 10 days of
completion of the Phase II WWTP Improvements, the Respondent shall submit
written notification of completion of the improvements.
4. Beginning
30 days after the completion of the Phase II WWTP Improvements, the Respondent
shall be subject to the stipulated penalties provided for in Order Paragraph 15
for the discharge from any portion of the collection system, the discharge from
any bypass point, or the failure to comply with any term or condition contained
in the Permit, including any effluent limitation.
5. Beginning 30 days after the completion of the Phase II WWTP
Improvements, the Respondent shall demonstrate for a period of six consecutive
months ("Compliance Demonstration"), the following:
A. continuous
compliance with the effluent limitations contained in the Permit;
B. that
discharges from any portion of the collection system, including any manhole or
lift station, do not occur; and
C. that no
unpermitted bypasses from the wastewater treatment plant occur, including from SSO
Outfall 102 at the WWTP Headworks.
In
the event that the Respondent fails to make the Compliance Demonstration, the
Respondent shall, within 60 days of becoming aware that the Compliance
Demonstration cannot be achieved, develop and submit to IDEM, for approval, a
plan (“action plan”) that identifies the corrective actions that the Respondent
will take to eliminate discharges from the collection system, eliminate
discharges from any wastewater treatment plant bypass point, and achieve and
maintain continuous compliance with the terms and conditions of the Permit,
including the effluent limitations. The
action plan shall include an implementation and completion schedule, including
specific milestone dates.
6. The
action plan required pursuant to Order Paragraph 5 shall be subject to the
approval of IDEM. If IDEM deems the
action plan to be inadequate, a revised action plan shall be submitted within
15 days of receipt of notice from IDEM of the inadequacies thereof. If, after submission of the first revised
action plan, IDEM still finds the action plan to be inadequate, then IDEM will
request further modification of the action plan as necessary to meet IDEM’s
requirements, and require re-submittal of the action plan by a specific
date. If the subsequently submitted
second revised action plan does not meet IDEM’s approval, IDEM will suggest specific
modifications to be made to the action plan and require re-submittal by a
specific date. If, by the specified
date, the Respondent does not submit a third revised action plan that
incorporates the IDEM-suggested modifications or submit an alternative adequate
action plan (as determined by IDEM), the IDEM-suggested modifications will be
deemed incorporated into the action plan.
7. The
approved action plan shall be incorporated into the Agreed Order and shall be
deemed an enforceable part thereof. The
Respondent, upon receipt of written approval from IDEM, shall immediately
implement the approved action plan and adhere to the milestone dates contained
therein. Failure to achieve compliance
at the conclusion of work under the action plan will subject Respondent to
additional enforcement action.
8. The
Respondent shall notify IDEM, in writing, within 10 days of completion of each task
contained in the approved action plan.
The notification shall include a description of the task completed and
the date it was completed.
9. At
any time during the construction of the Phase II WWTP Improvements, or during
the development and implementation of the action plan if required, the
Respondent may submit inflow and infiltration (I&I) reduction projects, such
as removal of illegal storm water connections or sewer rehabilitation projects,
intended to reduce the total wastewater transported to the WWTP.
To
the extent that these I&I reduction projects are designed and engineered to
reduce the total flow transported to the WWTP, as determined by IDEM, then upon
approval and completion of each project, IDEM will give written approval to the
Respondent to apply for construction permits for new sanitary sewer connections
and/or to submit capacity certifications for construction permit applications
for other parties for new sanitary sewer connections. The new sanitary sewer connections would be
approved at design flow ratios of one gallon of new sewer connection allowed
for each 5 gallons of total flow to the WWTP that the projects are designed and
engineered to remove.
10. The
Respondent shall not issue a capacity certification pursuant to 327 IAC 3-6-7
and 327 IAC 3-6-4, and shall not cause or allow the construction of any
sanitary sewer without written approval by IDEM.
11. Beginning
on the Effective Date of this Agreed Order and continuing until the completion
of the Phase II WWTP Improvements provided for by Paragraph 3 above, and the action
plan provided for by Paragraphs 5, 6 and 7, the Respondent shall, at all times,
operate its POTW (including the collection system and lift stations) as
efficiently and effectively as possible, and shall be subject to stipulated
penalties for its failure to comply with the overflow monitoring requirements,
overflow response requirements, and overflow reporting requirements of the
Permit and 327 IAC 2-6.1.
12. The
Respondent shall ensure that the influent flow meter and the effluent flow
meter are properly maintained and operational at all times. The Respondent
shall utilize the existing final effluent flow meter and the new raw influent
flow meter, respectively, to obtain the effluent flow and the influent flow
values that are reported on the applicable MRO form.
In
the event that either the influent or effluent flow meter becomes inoperable,
the Respondent shall notify the IDEM case manager verbally within 3 calendar
days and in writing within 7 calendar days after it has knowledge of this
event. Such notification shall describe
the anticipated length of downtime, the cause(s) of the down time, the measures
taken or to be taken by the Respondent to minimize the downtime, and the
timetable for bringing the meter(s) operational as quickly as possible.
13. The
Respondent shall prevent sludge, including any sludge removed during the
cleaning and rehabilitation of any of the wastewater treatment tanks, from
being released to the environment or waters of the state, and shall lawfully
dispose of all sludge, as required by Part II.B.4 of the Permit. Additionally, the Respondent shall maintain
detailed records pertaining to the sludge disposal, including but not
necessarily limited to, landfill approval and disposal records, land
application records, sludge disposal volumes, payment receipts, and hauling
records.
14. All
submittals required by this Agreed Order, unless notified otherwise in writing,
shall be sent to:
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Terry Ressler,
Enforcement Case Manager |
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Indiana
Department of Environmental Management |
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Office of
Enforcement – Mail Code 60-02 |
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15. In
the event the following terms and conditions are violated, unless the violation
is determined Force Majeure, the Complainant may assess and the Respondent
shall pay a stipulated penalty in the following amount:
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Order
Paragraph Number |
Violation
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Penalty
Amount |
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3 |
Failure to complete the
Phase II WWTP Improvements by March 16, 2008. |
$500 per each week |
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4 |
Discharge from the
collection system, discharge from any bypass point, or failure to comply with
any term or condition contained in the Permit. |
$500 per violation |
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5 |
Failure to submit an
action plan within 60 days of becoming aware that the Compliance
Demonstration cannot be achieved. |
$500 per each week |
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6 |
Failure to timely submit a
revised action plan if required. |
$500 per each week |
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7 |
Failure to timely
implement the approved action plan, or failure to comply with any milestone
dates contained in the approved action plan. |
$500 per each week late |
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8 |
Failure
to timely submit written notification of completion of each action plan task. |
$250 per violation |
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10 |
For issuing a construction
permit, issuing a capacity certification, or causing or allowing the
construction of any sanitary sewer without written approval by IDEM. |
$500 per violation |
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11 |
Failure to comply with the
overflow monitoring requirements, overflow response requirements, and
overflow reporting requirements of the Permit and 327 IAC 2-6.1 |
$500 per violation |
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12 |
Failure to ensure the
influent and effluent flow meters are properly maintained and operated, or
failure to timely submit notifications to IDEM if a flow meter becomes
inoperable and bring the meter operational as quickly as possible. |
$500 per violation |
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For causing the discharge
of sludge into the environment or waters of the state, or for failure to
maintain records pertaining to the sludge disposal as required. |
$500 per violation |
16. Stipulated
penalties shall be due and payable within thirty (30) 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 this Agreed Order. In lieu of any of the stipulated penalties
set out above, Complainant may seek any other remedies or sanctions available
by virtue of Respondent’s violation of this Agreed Order or Indiana law,
including, but not limited to, civil penalties pursuant to IC 13-30-4.
17. 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:
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Indiana
Department of Environmental Management |
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Cashier
– Mail Code 50-10C |
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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.
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 apply to and be binding upon Respondent and its successors
and assigns. Respondent’s signatories to this Agreed Order certify that they
are fully authorized to execute this Agreed Order and legally bind the party
they represent. No change in ownership,
corporate, or partnership status of Respondent shall in any way alter its
status or responsibilities under this Agreed Order.
20. In the
event that any terms of this Agreed Order are found to be invalid, the
remaining terms shall remain in full force and effect and shall be construed
and enforced as if this Agreed Order did not contain the invalid terms.
21. The
Respondent shall provide a copy of this Agreed Order, if in force, to any
subsequent owners or successors before ownership rights are transferred. Respondent shall ensure that all contractors,
firms and other persons performing work under this Agreed Order comply with the
terms of this Agreed Order.
22. This Agreed Order is not
and shall not be interpreted to be a permit or a modification of an existing
permit. This Agreed Order, and IDEM’s
review or approval of any submittal made by Respondent pursuant to this Agreed
Order, shall not in any way relieve Respondent of its obligation to comply with
the requirements of its applicable permit or any applicable Federal or State law
or regulation.
23. Complainant does not, by
its approval of this Agreed Order, warrant or aver in any manner that
Respondent’s compliance with any aspect of this Agreed Order will result in
compliance with the provisions of any permit, order, or any applicable Federal
or State law or regulation.
Additionally, IDEM or anyone acting on its behalf shall not be held
liable for any costs or penalties Respondent may incur as a result of
Respondent’s efforts to comply with this Agreed Order.
24. Nothing in this Agreed
Order shall prevent or limit IDEM’s rights to obtain penalties or injunctive
relief under any applicable Federal or State law or regulation, except that
IDEM may not, and hereby waives its right to, seek additional civil penalties
for the same violations specified in the NOV.
25. Nothing in this Agreed
Order shall prevent IDEM (or anyone acting on its behalf) from communicating
with the EPA or any other agency or entity about any matters relating to this
enforcement action. IDEM or anyone acting
on its behalf shall not be held liable for any costs or penalties Respondent may incur as a result of such communications with the
EPA or any other agency or entity.
26. This Agreed Order shall
remain in effect until Respondent complies with the terms of Order Paragraph Nos.
3 through 17 and IDEM issues a Resolution of Case letter.
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TECHNICAL RECOMMENDATION: |
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RESPONDENT: |
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Department of Environmental Management |
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By: |
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By: |
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Mark W. Stanifer, Chief |
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Printed: |
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Water Enforcement Section |
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Office of Enforcement |
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Date: |
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COUNSEL FOR COMPLAINANT: |
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COUNSEL FOR RESPONDENT: |
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For the Department of Environmental Management |
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By: |
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By: |
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Deputy Attorney General |
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Date: |
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APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF
ENVIRONMENTAL |
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MANAGEMENT THIS |
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, 2007. |
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For The Commissioner: |
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Signed on June 18, 2007 |
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Robert B. Keene |
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Assistant Commissioner |
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Office of Legal Counsel and Enforcement |
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