STATE OF
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BEFORE THE INDIANA DEPARTMENT
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OF ENVIRONMENTAL MANAGEMENT |
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COMMISSIONER OF THE DEPARTMENT |
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OF ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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CASE NO. 2003-12643-W |
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TOWN OF |
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Respondent. |
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The
Complainant and the Respondent desire to settle and compromise this action
without hearing or adjudication of any issue of fact or law, and consent to the
entry of the following Findings of Fact and Order. Pursuant to IC 13-30-3-3, entry into the
terms of this Agreed Order does not constitute an admission of any violation
contained herein. Respondent’s entry
into this Agreed Order shall not constitute a waiver of any defense, legal or
equitable, which the Respondent may have in any future administrative or
judicial proceeding, except a proceeding to enforce this order.
I. FINDINGS OF FACT
1.
The Complainant is the Commissioner (Complainant) of
the Indiana Department of Environmental Management, a department of the State
of
2.
The Respondent is the Town of Kirklin
(Respondent), which owns and operates a publicly owned treatment works (POTW)
comprised of a 100% separate sanitary sewer collection system and a municipal
wastewater treatment plant (WWTP), located at 800 North Main Street, on U.S.
Highway 421, in Kirklin, Clinton County, Indiana
(Site).
The Respondent is authorized by National Pollutant Discharge Elimination System
(NPDES) Permit No. IN0020630 (the Permit) to discharge treated municipal and/or
domestic wastewater from its municipal WWTP via Outfall 001 into waters of the
State consisting of an unnamed tributary of McClamrock
Ditch, thence to McClamrock Ditch, and thence to
Sugar Creek, within the Wabash River watershed (the Receiving Waters), in accordance
with effluent limitations, monitoring requirements, and other conditions set
forth therein.
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 (NOV) on
5.
Inspections and record reviews were conducted at the
site on the dates specified below by a representative of IDEM’s Office of Water
Quality (OWQ). The violations described
in the following paragraphs were in existence or observed at the time of these
inspections and record reviews, and were cited in the NOV.
6.
Pursuant to 327
Part I.A.1 of the Permit contains numeric effluent limitations and monitoring
requirements applicable to the discharge from the WWTP via Outfall 001.
The Respondent failed to meet the numeric effluent limitations contained in the
Permit, as reported by the Respondent on Discharge Monitoring Reports (DMRs) submitted from November 2001 through May 2004 and
specified below, in violation of 327 IAC 5-2-8(1) and Parts I.A.1 and II.A.1 of
the Permit:
i.
The maximum monthly and weekly average loading
limitations for ammonia-nitrogen (NH3-N) for the months of October
2002 and April 2004.
ii.
The maximum monthly and weekly average concentration
limitations for NH3-N for the month of October 2002.
iii.
The daily maximum concentration limitation for E. Coli for the month of August 2002.
7.
Pursuant to 327 IAC
Pursuant to 327 IAC
Pursuant to 327 IAC
i.
The mass, concentration, or other measurement
specified in section 11, 11.1, and 11.6 of 327 IAC 5-2 for each pollutant
specified in the permit.
ii.
The volume of wastewater flow at monitoring points
specified in the permit, including the final effluent flow from each point
source.
iii.
Other parameters as specifically required in the
permit.
Pursuant to 327 IAC
5-2-13(b), a POTW shall monitor the mass concentration, or other units of
specified pollutants in the raw influent, in the discharge from intermediate
unit treatment processes as specified in the permit or the applicable report of
operation (also referred to as the monthly report of operation or
Part I.A.1 of the Permit contains numeric effluent limitations and monitoring
requirements applicable to the discharge from the WWTP via Outfall 001.
Pursuant to Part I.B.2 of the Permit, the raw influent and the wastewater from
intermediate unit treatment processes, as well as the final effluent, shall be
sampled and analyzed for the pollutants and operational parameters specified by
the applicable
Pursuant to 327 IAC
i.
The date, exact place, and time of sampling or
measurements;
ii.
The person(s) who performed the sampling or
measurements;
iii.
The date(s) analyses were performed;
iv.
The person(s) who performed the analyses;
v.
The analytical techniques or methods used; and
vi.
The results of such measurements and analyses.
Pursuant to 327 IAC 5-2-14(b),
all records of monitoring activities and results (including all original strip
chart recordings for continuous monitoring instrumentation and calibration and
maintenance records) shall be retained by the permittee for at least three
years.
Pursuant to Part I.B.8 of the Permit, all records and information resulting
from the monitoring activities required by the Permit, including all records of
analyses performed and calibration and maintenance of instrumentation and
recording from continuous monitoring instrumentation, shall be retained for a
minimum of three years. In cases where
the original records are kept at another location, a copy of all such records
shall be kept at the permitted facility.
The Respondent failed to monitor the pollutants and operational parameters
required by the Permit and/or record and maintain on site the required data
pertaining to that monitoring, as documented on IDEM inspection reports and
specified below, in violation of one or more of 327 IAC 5-2-8(1), 327 IAC 5-2-8(9),
327 IAC 5-2-13(a), 327 IAC 5-2-13(b), 327 IAC 5-2-14(a), 327 IAC 5-2-14(b), and
Parts I.B.2., I.B.6, I.B.8, and II.A.1 of the Permit:
i.
No data was available for the percent of settling or
dissolved oxygen (DO) levels, as documented on the
ii.
Data for the mixed liquor DO in the aeration tank and
30-minute settleability tests were not being properly
recorded, as documented on the
8.
Pursuant 327 IAC
Pursuant to 327 IAC
Part I.A.1 of the Permit contains numeric effluent limitations and monitoring
requirements applicable to the discharge from the WWTP via Outfall 001.
Pursuant to Part I.B.2 of the Permit, the raw influent and the wastewater from
intermediate unit treatment processes, as well as the final effluent, shall be
sampled and analyzed fro the pollutants and operational parameters specified by
the applicable
Pursuant to 327 IAC
i.
The date, exact place, and time of sampling or
measurements;
ii.
The person(s) who performed the sampling or
measurements;
iii.
The date(s) analyses were performed;
iv.
The person(s) who performed the analyses;
v.
The analytical techniques or methods used; and
vi.
The results of such measurements and analyses.
Pursuant to 327 IAC
5-2-14(b), all records of monitoring activities and results (including all
original strip chart recordings for continuous monitoring instrumentation and
calibration and maintenance records) shall be retained by the permittee for at
least three years.
Pursuant to Part I.B.8 of the Permit, all records and information resulting from
the monitoring activities required by the Permit, including all records of
analyses performed and calibration and maintenance of instrumentation and
recording from continuous monitoring instrumentation, shall be retained for a
minimum of three years. In cases where
the original records are kept at another location, a copy of all such records
shall be kept at the permitted facility.
The Respondent failed to record and/or maintain on site all records and
information resulting from the monitoring activities pertaining to required
monitoring, as documented on IDEM inspection reports, in violation of one or
more of 327 IAC 5-2-8(1), 327 IAC 5-2-8(9), 327 IAC 5-2-14(a), 327 IAC
5-2-14(b), and Parts I.B.2., I.B.6, I.B.8, and II.A.1 of the Permit. Specifically, no lab data sheets were
available to verify the source of the NH3-N data reported to the
state on DMRs and MROs, as documented on the
9.
Pursuant to 327 IAC
Pursuant to 327 IAC
Pursuant 327 IAC
i.
The mass, concentration, or other measurement
specified in section 11, 11.1, and 11.6 of 327 IAC 5-2 for each pollutant
specified in the permit.
ii.
The volume of wastewater flow at monitoring points
specified in the permit, including the final effluent flow from each point
source.
iii.
Other parameters as specifically required in the
permit.
Pursuant to 327 IAC
5-2-13(b), a POTW shall monitor the mass concentration, or other units of
specified pollutants in the raw influent, in the discharge from intermediate
unit treatment processes as specified in the permit or the applicable report of
operation (also referred to as the monthly report of operation or
Part I.A.1 of the Permit contains numeric effluent limitations and monitoring
requirements applicable to the discharge from the WWTP via Outfall 001.
Pursuant to Part I.B.2 of the Permit, the raw influent and the wastewater from
intermediate unit treatment processes, as well as the final effluent, shall be
sampled and analyzed for the pollutants and operational parameters specified by
the applicable
Pursuant to 327 IAC
Pursuant to Part I.B.3 of the Permit, the permittee shall submit to IDEM
monitoring reports, including but not limited to DMRs
and MROs, containing the results obtained during the previous month.
The Respondent failed to monitor the pollutants and operational parameters
required by the Permit and/or to properly report the required data pertaining
to that monitoring, as determined by a review of the DMRs
and MROs submitted by the Respondent from November 2001 through May 2004 and
specified below, in violation of one or
more of 327 IAC 5-2-8(1), 327 IAC 5-2-8(9), 327 IAC 5-2-13(a), 327 IAC
5-2-13(b), 327 IAC 5-2-158(a), and Parts I.A.1, I.B.2, I.B.3, and II.A.1 of the
Permit:
i.
The Respondent failed to monitor the following
pollutants and operational parameters and/or report on both the DMR and the
appropriate
a.
Flow, in conduit or through the WWTP;
b.
Total flow;
c.
5-day carbonaceous biological oxygen demand (CBOD5);
d.
NH3-N;
e.
pH; and
f.
Dissolved Oxygen
ii.
The Respondent failed to report on the appropriate
10.
Pursuant to 327 IAC
Pursuant to 327 IAC
Pursuant to 327 IAC
Pursuant to 327 IAC 5-2-22(a) and Part II.C.6 of the Permit, all permit
applications for municipalities, state agencies, federal agencies, or other
public agencies or political subdivisions thereof shall be signed by either a
principal executive officer or ranking elected official.
The Respondent failed to have either a principal executive officer or a ranking
elected official, or a duly authorized representative of that person, sign the DMRs and MROs submitted for January, February, March,
April, May, June, July, August, and September 2002, and May 2004, in violation
of 327 IAC 5-2-8(1), 327 IAC 5-2-8(14), 327 IAC 5-2-22(b), and Parts II.A.1 and
II.C.6 of the Permit.
11.
Pursuant to 327 IAC
Pursuant to 327 IAC
i.
Installed or used by the permittee; and
ii.
Necessary for achieving compliance with the terms and
conditions of the permit.
Pursuant to Part II.B.1 of
the Permit, all waste collection, control, treatment, and disposal facilities
shall be operated in a manner such that, among other requirements, at all
times, all facilities are operated as efficiently as possible and in a manner
which will minimize upsets and discharges of excessive pollutants.
The Respondent failed to maintain its WWTP in good working order and/or to
operate its WWTP as efficiently as possible, evidenced as specified below, in
violation of 327 IAC
i.
The NH3-N and E. coli
effluent limitation violations specified in Item 3 above;
ii.
IDEM’s documentation on its inspection report of sludge
in the Receiving Waters on
iii.
IDEM’s documentation on its inspection report of
sludge in the Receiving Waters on
12.
Pursuant to 327 IAC
Pursuant to 327 IAC 2-1-6(a)(1) and Part I.A.2 of the Permit, all waters at all
times and at all places, including the mixing zone, shall meet certain minimum
conditions, including but not limited to , being free from substances,
materials, floating debris, oil, or scum attributable to municipal, industrial,
agricultural, and other land use practices, or other discharges:
i.
That will settle to form putrescent or otherwise
objectionable deposits;
ii.
That are in amounts sufficient to be unsightly or
deleterious; or
iii.
That produce color, visible oil sheen,
odor, or other conditions in such degree as to create a nuisance.
The Respondent allowed
sludge to enter the Receiving Waters that settled to form putrescent or
otherwise objectionable deposits, that was in an amount sufficient to be
unsightly or deleterious, and/or that produce color, visible oil sheen, odor,
or other conditions in such degree as to create a nuisance,
i.
IDEM’s documentation on its inspection report of
sludge in the Receiving Waters on
ii.
IDEM’s documentation on its inspection report of
sludge in the Receiving Waters on
13.
Pursuant to IC 13-18-4-5, it is unlawful for any
person to throw, run, drain, or otherwise dispose into any of the streams or
waters of Indiana; or cause, permit, or suffer to be thrown, run, drained,
allowed to seep, or otherwise disposed into any waters; any organic or
inorganic matter that causes or contributes to a polluted condition of any
waters, as determined by a rule of the Water Pollution Control Board adopted
under sections 1 and 3 of IC 13-18-4.
The Respondent’s violation of 327 IAC 2-1-6(a)(1) by allowing sludge to enter
the Receiving Waters, as referenced in Item 12 above, caused or contributed to
a polluted condition of the waters of Indiana.
Because the Respondent violated 327 IAC 2-1-6(a)(1), which is a rule
adopted by the Water Pollution Control Board under IC 13-18-4-1 and/or IC
13-18-4-3, in a manner that caused or contributed to a polluted condition of
the waters of Indiana, the Respondent also violated IC 13-18-4-5.
14.
Pursuant to IC 13-30-2-1(1), no person may discharge,
emit, cause, allow, or threaten to discharge, emit, cause, or allow any
contaminant or waste, including any noxious odor, either alone or in
combination with contaminants from other sources, into the environment or into
any publicly owned treatment works (POTW) in any form which causes or would
cause pollution which violates rules, standards, or discharge or emission
requirements adopted by the appropriate board under the environmental
management laws.
The Respondent’s violations of 327 IAC 5-2-8(1) by failing to meet the numeric
effluent limitations contained in the Permit, as referenced in Item 3 above,
and of 327 IAC 5-2-8(1) and 327 IAC 2-1-6(a)(1) by allowing sludge to enter the
Receiving Waters, as referenced in Item 12 above, caused or would have caused
pollution. Because the Respondent
violated 327 IAC 5-2-8(1) and 327 IAC 2-1-6(a)(1), both rules adopted by the
Water Pollution Control Board under the environmental management laws, in a
manner that caused or would have caused pollution, the Respondent also violated
IC 13-30-2-1.
15.
On
16.
On
The inspector noted that sludge was observed within the receiving stream at the
Respondent’s Site.
17.
On
18.
On
19.
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 his 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 IC 13-30-2-1, IC
13-18-4-5, 327 IAC 2-1-6(a), 327 IAC 5-2-8(1), 327 IAC 5-2-8(8), 327 IAC
5-2-8(9), 327 IAC 5-2-8(14), 327 IAC 5-2-13, 327 IAC 5-2-14, 327 IAC 5-2-15,
327 IAC 5-2-22, and Parts I.A.1, I.A.2, I.B.2, I.B.3, I.B.6, I.B.8, II.A.1,
II.B.1, II.C.6 of the Permit.
3.
Beginning on the Effective Date of this Agreed Order,
and continuing until implementation of the Compliance Plan required pursuant to
Order Paragraph 4 is complete, the Respondent shall, at all times, operate its
existing sanitary collection system and WWTP as efficiently and effectively as
possible.
4.
Within 60 days of the Effective Date of this Agreed
Order, the Respondent shall develop and submit to IDEM for its approval a
compliance plan (CP) that includes, but is not limited to, the following:
A.
A description of the actions that the Respondent will
take and management systems that the Respondent will develop and implement to
achieve and maintain continuous compliance with the effluent limitations
contained in the Permit. Such actions
shall include, but not be limited to routine operation and maintenance of all
treatment facilities and proper management, removal, storage, and disposal of
sludge;
B.
A description of the actions that the Respondent will
take to identify potential discharge points located within the sanitary
collection system, and in the event that such points exist, to prevent
discharges from such points;
C.
A description of the actions that the Respondent will
take to ensure that the sanitary collection system is at all times efficiently
operated and maintained in good working order.
Such actions shall include, but not be limited to, identification and
reduction of inflow and infiltration sources, including stormwater
connections to the sanitary collection system, to maintain compliance with the
NPDES Permit.
D.
A description of the actions that the Respondent will
take to comply with the monitoring and reporting requirements of the Permit,
including maintenance and utilization of a final effluent flow meter and
continuous chart recorder(s), systems for proper sampling and laboratory
analysis, timely submittal of complete and accurate monthly reports, and proper
signature of monthly reports; and
E.
A schedule for initiation and completion of all
actions described in the CP, including specific milestone dates.
Additional requirements that need to be included in
the CP are included in Attachment A, which is hereby incorporated into this
Agreed Order and deemed an enforceable part thereof.
5.
The Respondent shall, upon completion of
implementation of the portion of the CP required by Order Paragraph 4.A, be
subject to the stipulated penalties specified in Order Paragraph 17 below for
violation of the ammonia nitrogen monthly average concentration effluent
limitation contained in the Permit.
6.
The Respondent shall, within 12 months of the
completion of the portion of the CP required by Order Paragraph 4.A
(Performance Period), demonstrate for a period of 10 consecutive months,
compliance with the effluent limitations contained in the Permit. In the event that an effluent limitation
violation occurs during the Performance Period, the Respondent shall, within 60
days of becoming aware of the effluent limitation violation, submit to IDEM for
its approval, an Effluent Limitation Compliance Plan, that includes a
description of the additional actions that the Respondent will take to achieve
and maintain continuous compliance with the effluent limitations contained in
the Permit and a schedule, including specific milestone dates for initiating
and completing such actions.
7.
The plans required by Order Paragraphs 4. and 6. are subject to IDEM
approval. In the event that IDEM
determines any plan to be deficient or otherwise unapprovable,
the Respondent shall, upon written notice by IDEM, revise and resubmit the
plan, in accordance with IDEM’s written notice.
If, after three submissions of the plan by the Respondent, IDEM finds
the plan to be deficient or otherwise unapprovable,
IDEM may require the Respondent to revise and resubmit the plan, or
alternatively, may modify and approve the plan, in which case the Respondent
shall implement the plan as modified and approved by IDEM.
8.
Upon approval by IDEM, any plan required pursuant to
this Agreed Order 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 plan and adhere to the schedule contained therein.
9.
The Respondent shall notify IDEM, in writing, within
10 days of completion of each action or milestone contained in any plan
approved by IDEM pursuant to this Agreed Order. The notification shall include
a description of the action completed and the date it was completed.
10.
Within 30 days of the Effective Date of this Agreed
Order, the Respondent shall determine whether it has sufficient legal authority
to:
A.
implement and enforce its sewer use ordinances,
service agreements and/or other legally binding documents;
B.
require that all sewers and connections be properly
designed and constructed;
C.
test and inspect all new and rehabilitated sewers,
including both collector sewers and service laterals;
D.
regulate flows from satellite collection systems (if
any); and
E.
prohibit the connection or
introduction of stormwater sources to the sanitary
collection system.
11.
In the event that the Respondent determines that it
does not have the legal authority described in Order Paragraph 10, the
Respondent shall take all necessary steps to obtain such legal authority.
12.
Within 120 days of the Effective Date of this Agreed
Order, the Respondent shall submit to IDEM a statement certifying that it has
the legal authority described in Order Paragraph 10.
13.
Beginning on the Effective Date, the Respondent shall
inspect the sanitary collection system during and/or after precipitation
events, in order to determine whether a discharge has occurred. The Respondent
shall document its inspections by recording the following:
A.
the date and time of the inspection;
B.
the name of the person(s) conducting the inspection;
C.
the date the precipitation event began;
D.
the time the precipitation event began (estimated or
actual) and, for inspections conducted after the precipitation event, the time
the precipitation event ended (estimated or actual), and the volume (estimated
or actual) of the precipitation event;
E.
observations as to whether a discharge from the
sanitary collection system occurred, is occurring, or is about to occur, and if
so the location of the discharge/impending discharge; and
F.
the remedial measures taken in
the event that a discharge is found to have occurred, to be occurring, or about
to occur.
The Respondent shall maintain the required
documentation at the WWTP and shall make such documentation available to IDEM
representatives for inspection and/or copying upon request.
14.
Beginning on the Effective Date, in the event that a
discharge from the sanitary collection system occurs the Respondent shall:
A.
take all reasonable actions to cease the discharge as
soon as possible;
B.
properly clean the affected area;
C.
remove and properly dispose of sewage and debris from
the affected area;
D.
report the discharge event as follows:
(i)
Within twenty-four (24) hours of the Respondent’s
discovery of the discharge, the Respondent shall provide verbal notification of
the event to IDEM, at 317/232-8795 (or 317/232-8694) during regular business
hours or 317/233-7745 during non-business hours;
(ii)
Within five (5) days of the Respondent’s discovery of
the discharge, the Respondent shall submit written notification of the
discharge to IDEM. The notification
shall include the following information: the duration and cause of the
discharge and the remedial action taken to eliminate it;
(iii)
The Respondent shall report the duration and
estimated volume of the discharge on the Discharge Monitoring Report and the
Monthly Report of Operation; and
E.
document all actions taken to cease
the discharge and to remediate the affected areas, maintain copies of the
documentation at the WWTP, and make such documentation available to IDEM
representatives for inspection and/or copying upon request.
15.
All submittals required by this Agreed Order, unless
notified otherwise in writing, shall be sent to:
Mr. Paul Cluxton, Environmental Manager
Office of Enforcement
Indiana Department of Environmental Management
16.
The Respondent is assessed a civil penalty of One
Thousand Five Hundred and Fifteen Dollars ($1,515). Said penalty amount shall be due and payable
to the Environmental Management Special Fund within 30 days of the Effective
Date.
17.
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:
|
Order Paragraph Number |
Violation
|
Penalty Amount |
|
4 |
Failure
to submit the CP, as required. |
$250 per each week or
part thereof late |
|
5 |
Violation
of ammonia nitrogen monthly average effluent limitation contained in the
Permit, subsequent to completion of implementation of the portion of the CP
required pursuant to Order Paragraph 4.A. |
$1000 per violation |
|
6 |
Failure
to submit Effluent Limitation Compliance Plan, if required. |
$250 per each week or
part thereof late |
|
7 |
Failure
to revise and resubmit any plan required pursuant to this Agreed Order, as
required. |
$250 per each week or
part thereof late |
|
8 |
Failure
to implement an approved plan, or to meet any
milestone date set forth in any approved plan. |
$500 per each week or
part thereof late |
|
9 |
Failure to notify IDEM, in writing, within 10 days
of completion of each action contained in the approved action plan. |
$250 per each week or part thereof late |
|
12 |
Failure to timely submit certification statement |
$250 per each week or
part thereof late |
|
13 |
Failure to inspect sanitary collection system, as
required |
$500 per violation |
|
13 |
Failure to document inspections of sanitary
collection system or make documentation available to IDEM, as required |
$500 per violation |
|
14 |
Failure to take all reasonable actions to cease the
discharge as soon as possible; properly clean the affected area; remove and
properly dispose of sewage and debris from the affected area; or report the
discharge event, as required |
$500 per violation |
|
14 |
Failure to document action taken to cease the
discharge and to remediate the affected areas, or make documentation
available to IDEM, as required. |
$500 per violation |
18.
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
19.
Civil and stipulated penalties are payable by check
to the Environmental Management Special Fund.
Checks shall include the Case Number (2003-12643-W) of this action and
shall be mailed to:
Cashier
Indiana Department of Environmental Management
P. O. Box 7060
20.
In the event that the civil penalty required by Order
Paragraph 16, is not paid within 30 days of the Effective Date of this Agreed
Order, the Respondent shall pay interest on the unpaid balance at the rate
established by IC 24-4.6-1-101. The
interest shall continue to accrue until the civil penalty is paid in full.
21.
This Agreed Order shall apply to and be binding upon
the Respondent, its successors, and assigns.
The Respondent's signatories to this Agreed Order certify that they are
fully authorized to execute this document and legally bind the parties they
represent. No change in ownership,
corporate, or partnership status of the Respondent shall in any way alter its
status or responsibilities under this Agreed Order.
22.
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.
23.
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.
24.
“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.
25.
This Agreed Order shall remain in effect until the
Respondent complies with the terms of Order Paragraphs 3 through 20 and until
IDEM issues a Close-Out letter to the Respondent.
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Mark W. Stanifer |
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Office of Enforcement |
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Department of Environmental Management |
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Joseph H. Merrick, Attorney |
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Office of Legal Counsel |
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The Department of Environmental Management |
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APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF
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MANAGEMENT THIS |
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For The Commissioner: |
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Signed on March18, 2005 |
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Matthew T. Klein |
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Assistant Commissioner |
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The portion of the
Compliance Plan required pursuant to Order Paragraph 4 shall provide for the
following:
1.
Development and implementation of a Maintenance
Program that includes, but is not necessarily limited to:
a.
routine/ongoing preventive maintenance of facilities
and equipment, using a predictive approach to continually review and update
maintenance procedures;
b.
identification of critical parts needed for system operation
and maintenance;
c.
establishment and maintenance of an adequate
inventory of replacement parts; and
d.
routine/ongoing efforts to identify
sources of infiltration and inflow and to systematically eliminate those
sources.
2.
Development and implementation of an Operations and
Capacity Management Program that includes, but is not necessarily limited to:
a.
routine/ongoing assessment of the structural
integrity and capacity of the collection system and treatment facilities;
b.
evaluation of the impact of industrial and other
non-domestic collection systems tributary to all overflow and/or bypass points,
and identification and implementation of actions necessary to address such
impacts;
c.
Identification and prioritization of structural and
hydraulic deficiencies (particularly those that allow for infiltration and
inflow to the collection system and limit the capacity of the sewer lines to
transport all collected water to the treatment plant for treatment and/or those
that are causing or contributing to collection system discharges) and
identification and implementation of rehabilitative actions needed to correct
each deficiency,
d.
monitoring of the collection system, both routinely
and during all precipitation events, to identify discharges; and
e.
Procedures for responding to and operating during
conditions likely to result in collection system discharges, such as floods,
equipment failure, and power failure.
3.
Development and implementation of an Information
Management Program that includes, but is not necessarily limited to:
a.
Development and maintenance of an accurate and
up-to-date map of the collection system;
b.
Procedures for recording and reporting collection
system discharge events, consistent with the requirements of the Permit;
c.
Identification and illustration of trends in overflow
occurrences;
d.
Procedures for responding to overflows;
e.
Procedures for tracking collection system problems
(including customer complaints);
f.
Maintenance of all records resulting from work
performed in the collection system including work orders associated with
investigations, inspections, new installations, preventive and routine
maintenance, and corrective actions;
g.
Procedures for complying with the records retention
requirements of the NPDES permit; and
h.
Documentation of all activities taken in order to
implement the portion of the CP required pursuant to Order Paragraph 4.
4.
Development and implementation of a Training and
Review Program that includes, but is not necessarily limited to:
a.
Appropriate regular and refresher training on a
routine basis for employees and other affected persons, on procedures for
implementation of the provisions of the CP required pursuant to Order Paragraph
4.A and D; and
b.
Annual reviews by representatives of all levels of
management and staff to assess the overall effectiveness of the CP, and
recommend adjustments.
5.
Development and implementation of a Monitoring and
Modification Program that includes, but is not necessarily limited to:
a.
Ongoing monitoring of the implementation and
effectiveness of the portion of the CP required pursuant to Order Paragraph
4.A, C, and D; and
b.
Modification and update as necessary to ensure that
the purpose of the CP required pursuant to Order Paragraph 4.D is achieved.