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. 2003-12663-W
					)
CITY OF MT. VERNON,					)
					)
	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 (“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, the City of Mt. Vernon (“Respondent”), owns and operates a publicly owned treatment works (POTW) which includes a collection system and a 4.1 MGD activated sludge wastewater treatment plant (WWTP) located at 410 Old State Road 69, Mt. Vernon, in Posey County, Indiana. Respondent is authorized by National Pollutant Discharge Elimination System (NPDES) Permit No. IN0035696 (the "Permit") to discharge treated effluent from the WWTP to receiving waters named the Ohio River in accordance with effluent limitations, monitoring requirements, and other conditions contained in the Permit. The Respondent also owns and operates the Mt. Vernon Public Water Works which includes a water treatment plant with offices located at 123 College Avenue in Mt. Vernon. The Respondent is authorized by NPDES Permit No. IN0003921 (the "PWS Permit") to discharge wastewater from the water treatment plant, to receiving waters named the Ohio River in accordance with effluent limitations and monitoring requirements contained therein.

3. The Indiana Department of Environmental Management (“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 via Certified Mail to:

The Honorable Rosemary Knowles, Mayor

City of Mt. Vernon

City Hall Annex

520 Main Street

Mt. Vernon, IN 47620-1846

5. An investigation by IDEM revealed the existence of the following violations:

A. Pursuant to 327 IAC 5-2-8(1) and Part II.A.1. of NPDES Permit No. IN0035696, the Respondent is required to comply with all terms and conditions of the Permit.

Pursuant to Part VI of Attachment A of the Permit, the Respondent was required to submit to IDEM a Combined Sewer Overflow Long-term Control Plan (LTCP) by October 1, 2001. IDEM records indicate that the Respondent did not submit its LTCP to IDEM until June 26, 2003, which is a failure to timely comply, in violation of 327 IAC 5-2-8(1), Part II.A.1 of the Permit, and Part VI of Attachment A of the Permit.

B. Pursuant to 327 IAC 5-2-2, any discharge of pollutants into waters of the state as a point source discharge, except for exclusions made in 327 IAC 5-2-4, is prohibited unless in conformity with a valid NPDES permit obtained prior to the discharge.

Pursuant to 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, as determined by a rule of the board adopted under IC 13-18-4-1 and IC 13-18-4-3.

Pursuant to Indiana Code 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(1) and Part II.A.1 of the Permit No. IN0035696 and Attachment B of the Permit, overflows in the sanitary portion of the sewer system are prohibited.

Overflow points listed in Attachment B of the Permit include the location at E and S Housing (Outfall No. 006) to an unnamed tributary to the Ohio River and an overflow located at the Country Club Estates Lift Station (Outfall 008) to an unnamed ditch to the Ohio River. IDEM records for the period between April 2001 and August 2004 indicate that the Respondent reported to IDEM that overflows occurred at the Country Club Estates Lift Station on August 2 and 3, 2003 and at the E and S Housing location on April 3, 2001, November 27-29, 2001, December 16-17, 2001, February 1, 2002, March 9, 2002, March 19, 2002, March 25-26, 2002, April 14, 19, 24, 28, 2002, May 8, 2002, May 13, 2002, December 31, 2002, January 1, 2003, and May 1, 4, 5, 7, 2003, June 9-12, 2003, January 2-5, 2004, March 3-4, 2004, May 25-26, 2004 and August 26, 2004. Such discharges occurred without a valid NPDES Permit and/or were not in conformity with a valid NPDES Permit, in violation of 327 IAC 5-2-2, 327 IAC 5-2-8(1), Part II.A.I of the Permit, Attachment B of the Permit, IC 13-30-2-1, and IC 13-18-4-5.

C. Pursuant to 327 IAC 5-2-8(1), Part II.A.1 of the Permit No. IN0035696, 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.

During an inspection by IDEM representatives of the Respondent's wastewater treatment plant conducted on May 1 and 2, 2003, the following observations were made, evidencing a failure by the Respondent to properly maintain and/or efficiently operate all waste collection, control, treatment, or disposal facilities:

1. A rainstorm had resulted in the bypassing of some wastewater treatment plant influent from the plant headworks to the plant outfall.

2. The wastewater treatment plant received a slug of flour from a grain truck washing operation that caused operational difficulties at the wastewater treatment plant.

3. Only the old half of the wastewater treatment plant was being used to treat wastewater. In the old primary sedimentation tank, only one side was on line. The old activated sludge tank was grey in color, and had very little, if any, activated sludge in it. The old secondary clarifier had no sludge blanket at all. The chlorine contact tank had solids washing over the weir to the outfall.

4. The new half of the wastewater treatment plant was in a stabilization mode. The water in the new primary sedimentation tank was black. The sludge in the new activated sludge tank was turning grey. The new secondary clarifier had sludge at the top of the weir.

The Respondent's failure to properly maintain and/or efficiently operate all waste collection, control, treatment, or disposal facilities is in violation of 327 IAC 5-2-8(1), Part II.A.1 of the Permit, 327 IAC 5-2-8(8), and Part II.B.1 of the Permit.

D. Pursuant to 327 IAC 5-2-8(1) and Part II.A.1 of the Respondent's public water supply (PWS), NPDES Permit No. IN0003921 (the "PWS Permit"), the Respondent is required to comply with all terms and conditions of the PWS Permit.

Part I.A.1 of the PWS Permit contains the final effluent limitations applicable to the discharge from Outfall 001 to the Ohio River.

Discharge Monitoring Reports and Monthly Reports of Operation submitted by Mt. Vernon to IDEM reveal violations of final effluent limitations contained in Part I.A.1 of the PWS Permit for Total Suspended Solids monthly average concentration during October and November of 2002, January, February, March, April, June, and July 2003, and March and April 2004.

These failures to meet effluent limitations contained in the PWS Permit are in violation of 327 IAC 5-2-8(1) and Parts I.A.1 and II.A.1. of the PWS Permit.

E. Pursuant to 327 IAC 5-2-8(1) and Part II.A.1 of the Respondent's public water supply (PWS), NPDES Permit No. IN0003921 (the "PWS Permit"), the Respondent is required to comply with all terms and conditions of the PWS Permit.

Part I.A.1 of the PWS Permit requires the volume of flow discharged from Outfall 001 to be monitored as 24-hour total flow. The Respondent did not report to IDEM a volume of flow on its Monthly Reports of Operation or Discharge Monitoring Reports for October through December 2001, January through December 2002, and January through February 2003, in violation of 327 IAC 5-2-8(1), Part II.A.1 of the PWS Permit, and Part I.A.1 of the PWS Permit.

6. 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 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's LTCP is subject to IDEM approval. In the event that IDEM deems the Respondent's LTCP to be deficient, the Respondent shall, upon receiving notice from IDEM of such deficiency, modify and/or supplement its LTCP as necessary to correct the noted deficiency(s), and re-submit the LTCP to IDEM, within the timeframe provided by IDEM.

3. The Respondent, upon receipt of written notification from IDEM of approval of the LTCP, shall immediately implement the approved LTCP and adhere to the milestone dates therein. The approved LTCP shall be incorporated into this Agreed Order and shall be deemed an enforceable part thereof.

4. The Respondent shall comply with all applicable provisions of the Indiana Code (IC), the Indiana Administrative Code (IAC), including, but not limited to, 327 IAC 5-2-8, and its NPDES Permits.

5. Within 90 days of the Effective Date of this Agreed Order, the Respondent shall develop and submit to IDEM for approval a Compliance Plan (CP) that identifies the corrective actions that the Respondent will take to address and resolve the violations identified in paragraph 5 of the Findings of Fact of this Agreed Order. The CP shall include, but not necessarily be limited to, the following:

a) actions that will be taken to eliminate sanitary sewer overflows, including the E& S Housing Outfall 006;

b) actions that will be taken to identify and eliminate sources of Inflow/Infiltration (I & I) in the sanitary sewer system, including areas tributary to the E & S Housing area;

c) actions that will be taken to achieve and maintain compliance with the effluent limitations contained in the PWS Permit, or eliminate the noncompliant discharge; and

(d) implementation and completion schedules for items a, b, and c above, including specific milestone dates.

6. The Respondent shall, within six months of completion of the Compliance Plan required by Paragraph 5 above (Performance Period), demonstrate five consecutive months of compliance (Compliance Demonstration) with the sanitary sewer overflow prohibitions and effluent limitations contained in its NPDES Permits. In the event that a discharge from the sanitary sewer system at Outfall 006 or Outfall 008 occurs during the Performance Period, the Respondent shall, within 60 days of the occurrence of the discharge, develop and submit to IDEM a plan ("collection system/bypass action plan") that identifies the additional actions that the Respondent will take to eliminate the sanitary sewer system overflows. During the Performance Period, the Respondent shall be subject to stipulated penalties, as specified below, for violations of the effluent limitations of PWS NPDES Permit No. IN0003921. 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, an “Additional Action Plan” which identifies the additional actions that Respondent will take to achieve and maintain compliance with the effluent limitations contained in its NPDES Permit. The Additional Action Plan(s), if required, shall include an implementation and completion schedule, including specific milestone dates.

7. The plans required by Paragraphs 5 and 6 above are subject to IDEM approval. In the event IDEM determines that any plan submitted by Respondent is deficient or otherwise unacceptable, Respondent shall revise and resubmit the plan to IDEM in accordance with IDEM’s notice. After three submissions of such plan by Respondent, IDEM may modify and approve any such plan and Respondent must implement the plan as modified by IDEM.

The Respondent, upon receipt of written notification from IDEM, shall immediately implement the approved plan and adhere to the milestone dates therein. The approved Compliance Plan and Additional Action Plan shall be incorporated into the Agreed Order and shall be deemed an enforceable part thereof. Failure by the Respondent to submit any plan by the specified date, or to meet any of the milestones in the approved plan will subject the Respondent to stipulated penalties as described below. Failure to achieve compliance at the conclusion of work under an Additional Action Plan will subject Respondent to additional enforcement action.

8. The Respondent shall notify IDEM, in writing, within 10 days of completion of each action contained in any approved plan. The notification shall include a description of the action completed and the date it was completed.

9. All submittals required by paragraphs 2, 5, 6 and 7 of this Agreed Order, unless specified by IDEM otherwise, in writing, shall be sent to:

Paul Cluxton, case manager

Water Enforcement Section

Office of Enforcement

Indiana Department of Environmental Management

P.O. Box 6015

Indianapolis, Indiana 46206-6015

All submittals required by paragraph 2 of this Agreed Order shall also be sent to:

Cindy Wagner, Chief

Urban Wet Weather Section

IDEM, Office of Water Quality

100 N. Senate Avenue

P.O. Box 6015

Indianapolis, Indiana 46206-6015

10. The Respondent is assessed a civil penalty of Five Thousand Two Hundred Fifty ($5,250) Dollars. 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.

11. In the event the following terms and conditions are violated, the Complainant may assess and the Respondent shall pay a stipulated penalty in the following amounts:

Paragraph	Violation	Penalty
Order Paragraph 2	Failure to modify and/or supplement LTCP and re-submit to IDEM, as required	$500 per week late
Order Paragraph 3	Failure to comply with any milestone date set forth in the approved LTCP	$500 per week late
Order Paragraph 5	Failure to timely submit Compliance Plan	$500 per week late
Order Paragraph 6	Failure to timely submit action plans, if required	$500 per week late
Order Paragraph 6	Discharge from the collection system sanitary sewer overflows 006 or 008 after the date of completion of the portion of the CP required pursuant to Order Paragraph 5a	$2000 per incident
Order Paragraph 6	Failure to comply with the effluent limitations of the PWS NPDES Permit after the date of completion of the portion of the CP required pursuant to Order Paragraph 5d	$500 per incident
Order Paragraph 7	Failure to timely resubmit any plan, if required.	$500 per week late
Order Paragraph 7	Failure to comply with the milestone dates contained in the approved CP	$500 per week late
Order Paragraph 8	Failure to timely provide IDEM notice of completion of any action contained in any approved plan	$250 per week late

12. Stipulated penalties shall be due and payable within 30 days after Respondent receives written notice that the Complainant has determined a stipulated penalty is due. Assessment and payment of stipulated penalties shall not preclude the Complainant from seeking any additional relief against the Respondent for violation of the Agreed Order. In lieu of assessment of the stipulated penalty given above, the Complainant may seek any other remedies or sanctions available by virtue of Respondent's violation of this Agreed Order, or Indiana law, including but not limited to civil penalties pursuant to IC 13-30-4.

13. Civil and stipulated penalties are payable by check to the Environmental Management Special Fund. Checks shall include the Case Number of this action and shall be mailed to:

Cashier

IDEM

100 N. Senate Avenue

P.O. Box 7060

Indianapolis, Indiana 46207-7060

14. In the event that the civil penalty required by Order Paragraph 10 is not paid when due, 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.

15. 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.

16. 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.

17. 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.

18. The provisions of this Agreed Order do not affect the limitations and

requirements set forth in 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 the limitations and requirements set forth in its NPDES permit.

19. 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 any applicable requirements of its NPDES Permit or of federal or state law or regulation.

20. "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.

21. This Agreed Order shall remain in effect until:

a. The Respondent has complied with the terms of Order Paragraphs 2 and 5 through 14; and

b. The Respondent has fully implemented its approved LTCP pursuant to Paragraph 3; or

The Respondent’s approved LTCP has been incorporated into and become an enforceable part of the Respondent’s NPDES permit or a Judicial Order; and

c. IDEM issues a Close-Out letter to the Respondent.

TECHNICAL RECOMMENDATION:				RESPONDENT:
Department of Environmental Management				City of Mt. Vernon
By:	______________________________			By:		______________________________
	Mark W. Stanifer, Chief			Printed:		Rosemary Knowles
	Water Enforcement Section			Title:		Mayor
	Office of Enforcement
Date:	_______________________________			Date:		______________________________
COUNSEL FOR COMPLAINANT:			COUNSEL FOR RESPONDENT:
Department of Environmental Management
By:		______________________________	By:		______________________________
		Joseph Merrick			Scott Funkhouser
		Office of Legal Counsel			Attorney at Law
Date:		______________________________	Date:		______________________________

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _______ DAY OF _______________________, 2004

For the Commissioner:

Signed 11/10/04

Felicia A. Robinson

Deputy Commissioner

for Legal Affairs