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ENVIRONMENTAL MANAGEMENT |
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COMMISSIONER OF THE DEPARTMENT
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OF ENVIRONMENTAL
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Complainant, |
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CASE NO. 2005-14602-W |
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TOWN OF |
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Respondent. |
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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 (IDEM), a department of the State of
2.
The Town of
3.
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:
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Mr. Robert Gray, President |
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Town Council of Andrews |
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Andrews, IN 46702 |
5.
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.
6.
Pursuant to 327 IAC 5-2-8(8) and Part II.B.1 of the Permit,
the Respondent is required to maintain in good working order and efficiently
operate all waste collection, control, treatment, and disposal facilities.
7.
Pursuant to 327 IAC 5-2-8(11) and Part II.B.2 of the Permit,
the permittee may allow any bypass to occur that does not exceed any effluent
limitations contained in the NPDES permit, but only if it also is for essential
maintenance to assure efficient operation. The permittee must provide the
commissioner with the following notice:
(i)
If the permittee knows or should have known in advance of
the need for a bypass (anticipated bypass), it shall submit prior written
notice. If possible, such notice shall be provided at least ten days before the
date of the bypass for approval by the commissioner.
(ii)
The permittee shall orally (or by facsimile) report an
unanticipated bypass within 24 hours of becoming aware of the bypass event. The
permittee must also provide a written report within five days of becoming aware
of the bypass event.
Bypass is prohibited, and the commissioner may take enforcement action against
a permittee for bypass unless the bypass was unavoidable to prevent loss of
life, personal injury, or severe property damage, and there were no feasible
alternatives to the bypass, such as the use of auxiliary treatment facilities,
retention of untreated wastes, or maintenance during normal periods of
equipment downtime.
8.
IDEM records review revealed that there were 25 days of
wet-weather bypass/overflows at three different locations in the Respondent’s
collection system in 2003 and on 23 consecutive days during January 2005. Excessive wet-weather infiltration/inflow
(I/I) was noted in the 100% designed sanitary sewer collection system, during a
January 27, 2005 IDEM inspection, when hydraulic overload created bypass
conditions at Outfall 002, a.k.a. the Main Plant Bypass, also resulting in
untreated sewage entering to the Wabash River.
These bypasses were avoidable, and therefore the Respondent is in
violation of 327 IAC 5-2-8(11). These
bypasses indicate failure by the Respondent to maintain in good working order
and efficiently operate its waste collection, control, treatment, and disposal
facility, in violation of 327 IAC 5-2-8(8) and Part II.B.1. of the Permit. By committing these bypasses, the Respondent
is also in violation of 327 IAC 5-2-8(1) and Part II.A.1. of the Permit.
9.
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 board adopted under IC 13-18-4-1 and IC 13-18-4-3.
10.
During the bypasses noted above, the Respondent ran,
drained, or disposed of wastewater, an organic matter, into waters of the
state, including the Wabash River, in a manner that violated 327 IAC 5-2-8(1),
327 IAC 5-2-8(8), and 327 IAC 5-2-8(11), and therefore is also in violation of
IC 13-18-4-5.
11.
Pursuant to IC 13-30-2-1, 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 in any form which 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.
12.
During the bypasses noted above, the Respondent discharged,
emitted, or caused or allowed the discharge or emission of wastewater, a
contaminant or waste, into the environment in a form that caused pollution in
violation of 327 IAC 5-2-8(1), 327 IAC 5-2-8(8) and 327 IAC 5-2-8(11) and
therefore is also in violation of IC 13-20-2-1.
13.
Pursuant to Part I.A.1. of the Permit, the Respondent is
required to meet flow monitoring requirements and effluent limitations for
parameters including carbonaceous Biochemical Oxygen Demand, five day (CBOD5),
Total Suspended Solids (TSS), and pH.
14.
Pursuant to Part I.B.3. of the Permit, the Respondent is
required to submit monitoring reports to IDEM containing results obtained during
the previous month and shall be postmarked no later than the 28th
day of the month following each completed monitoring period.
15.
IDEM records for the period between November 2004 and May
2005 indicate that the Respondent failed to report flow data and results
pertaining to effluent limitations for the following parameters: TSS, CBOD5, and pH for the month of January
2005. Respondent’s failure to report
flow data and results pertaining to effluent limitations is in 327 IAC
5-2-8(1), Part I.A.1, Part I.B.3. and Part II.A.1 of the Permit.
16.
On December 6, 2004, Respondent entered into a wastewater
service agreement with the Norwood Regional Water and Sewer District (Norwood
RWSD), to whom IDEM issued Construction Permit Approval No. 16356R (the
Approval) on September 28, 2004. The
Approval will allow Norwood RSD to construct a sanitary sewer system and
connection infrastructure to connect to the Respondent’s wastewater treatment
facility. Norwood RWSD is authorized to
begin construction pursuant to the Approval before October 1, 2005.
17.
A settlement conference was held on July 18, 2005, at which
Respondent indicated that the January 2005 report of flow data and results
pertaining to effluent limitations, as referenced in Paragraph 12 of the NOV
and Paragraph 15 of this Agreed Order, above, was submitted. IDEM records were reviewed to confirm that
the January 2005 report was received late by IDEM on May 12, 2005. The Respondent also questioned whether
wet-weather bypass/overflows occurred at three different locations in the
Respondent’s collection system in 2003.
IDEM records were reviewed to confirm that three different locations
were named including: wastewater treatment plant, Jefferson Lift Station, and
Main Lift Station. Respondent indicated
that the bypasses were the result of heavy rains and the highly unusual
hydraulic flooding stage of the receiving stream during the months of May, and
July 2003, and January 2005.
18.
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 his delegate and has been received by the
Respondent. This Agreed Order shall have
no force or effect until the Effective Date.
2.
In the event that any partially treated or untreated
discharge from any portion of the Respondent’s treatment plant or collection
system, including any process tank, lift station or manhole, 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 24 hours of the Respondent becoming aware of the
discharge, the Respondent shall provide facsimile notification of the event to
IDEM, at 317/232-8637 or 317/232-8406;
(ii)
Within five days of the Respondent becoming aware of the
discharge, the Respondent shall submit written notification of the event to
IDEM. The notification shall include the
following information: the cause of the discharge; the duration of the
discharge, including exact dates and times, and if the discharge has not
ceased, the anticipated time it is expected to continue; the remedial actions
that have been or that will be taken to cease the discharge; and the actions
that have been or that will be taken to prevent reoccurrence of the discharge.
e.
document all actions taken to cease the discharge and to
remediate the affected areas, retain copies of the documentation, and allow
IDEM representatives to inspect and copy these records upon request.
3.
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 includes the following:
a.
Actions that the Respondent will take to eliminate bypassing
from its wastewater treatment plant and discharges from its collection system,
including all lift stations and manholes;
b.
Actions that the Respondent will take to ensure that its
wastewater treatment plant and collection system are at all times efficiently
operated and maintained in good working order.
This portion of the CP must include, but not necessarily be limited to,
the elements identified in Attachment A, which is hereby incorporated into this
Agreed Order and deemed an enforceable part thereof;
c.
An implementation and completion schedule, including
specific milestone dates, for the actions required pursuant to items a and b
above.
4.
Beginning on the Effective Date of this Agreed Order and
continuing until completion of the portion of the CP required pursuant to Order
Paragraph 3a above, the Respondent shall operate its existing wastewater
collection and treatment system as efficiently and effectively as possible and
shall be subject to the stipulated penalties provided for in Order Paragraph 14
below for any bypassing from its wastewater treatment plant and/or discharge
from the collection system, including any discharge from any lift station or
manhole.
5.
Upon completion of the portion of the CP required pursuant
to Order Paragraph 3a above, the Respondent shall be subject to the stipulated
penalties provided for in Order Paragraph 14 below for any bypassing from its
wastewater treatment plant and/or discharge from the collection system,
including any discharge from any lift station or manhole.
6.
The Respondent shall, within 12 months of the completion of
the portion of the CP required pursuant to Order Paragraph 3a above
(Performance Period), demonstrate for a period of 12 consecutive months that
bypassing from its wastewater treatment plant and discharges from the
collection system, including all lift stations and manholes, do not occur. In
the event that any bypassing from its wastewater treatment plant, or any
discharge from the collection system, including any lift station or manhole,
occurs during the Performance Period, the Respondent shall, within 60 days of
the occurrence of the bypassing, or discharge, develop and submit to IDEM, for
approval, a plan (action plan) that identifies the additional actions that the
Respondent will take to eliminate bypassing from its wastewater treatment
plant, and to eliminate discharges from the collection system, including all lift
stations and manholes. The action plan shall include an implementation and
completion schedule, including specific milestone dates.
7.
The plans required pursuant to Order Paragraphs 3 and 6
above shall be subject to the approval of IDEM.
If IDEM deems a plan to be inadequate, a revised plan shall be submitted
within 15 days of receipt of notice from IDEM of the inadequacies thereof. If,
after submission of the first revised plan, IDEM still finds the plan to be
inadequate, then IDEM will request further modification of the plan as
necessary to meet IDEM’s requirements, and require re-submittal of the plan by
a specific date. If the subsequently
submitted second revised 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, by the specified
date, the Respondent does not submit a third revised plan that incorporates the
IDEM-suggested modifications or submit an alternative adequate plan (as
determined by IDEM), the IDEM-suggested modifications will be deemed
incorporated into the plan.
8.
The plans required pursuant to Order Paragraphs 3 and 6
shall, upon approval by IDEM, 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 milestone dates contained
therein.
9.
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.
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 ordinance, 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 collection system.
11.
In the event that the Respondent determines that it does not
have such sufficient legal authority described in Order Paragraph 10 above, the
Respondent shall, as expeditiously as possible, but no later than 120 days
after the Effective Date of this Agreed Order, 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 above.
13.
All submittals required by this Agreed Order, unless
specified otherwise in writing, shall be sent to:
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Dave Knox,
case manager |
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Office of
Enforcement, Mail Code 60-02 |
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IDEM; |
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14.
In the event that any of the terms and conditions of the following
paragraphs are violated, the Complainant may assess and the Respondent shall
pay a stipulated penalty in the following amount:
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Paragraph Number |
Violation |
Penalty Amount |
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2 |
Failure to take all
reasonable actions to cease the bypassing from its wastewater treatment
plant, or discharge from the collection system, 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 |
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2 |
Failure to document
action taken to cease the bypassing from its wastewater treatment plant, or
cease the discharge from the collection system, and to remediate the affected
areas, or make documentation available to IDEM, as required |
$500 per violation |
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3 |
Failure to timely submit
CP |
$250 per each week or
part thereof late |
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4 |
Bypassing from the
wastewater treatment plant, or discharge from the collection system, including
any lift station or manhole, prior to completion of the portion of the CP
required pursuant to Order Paragraph 3a above |
$500 per discharge event |
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5 |
Bypassing from the
wastewater treatment plant, or discharge from the collection system, including
any lift station or manhole, on and after the date of completion of the
portion of the CP required pursuant to Order Paragraph 3a above |
$2000 per discharge event |
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6 |
Failure to timely submit
action plan, if required |
$250 per each week or part
thereof late |
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7 |
Failure to timely revise
and resubmit any plan |
$250 per each week or
part thereof late |
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8 |
Failure to comply with
any milestone date contained in any approved plan |
$500 per each week or
part thereof late |
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9 |
Failure to timely notify
IDEM of completion of any action contained in any approved plan |
$250 per each week or
part thereof late |
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12 |
Failure to timely submit
certification statement |
$250 per each week or
part thereof late |
15.
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 this 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
16.
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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Cashier’s
Office- Mail Code 50-02 |
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IDEM |
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17.
In the event that any stipulated penalty required by
Paragraph 14 is not paid within 30 days of written notice from IDEM, 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 stipulated penalty is paid in full.
18.
This Agreed Order shall apply to and be binding upon the Respondent,
its officers, directors, principals, agents, successors, subsidiaries, and
assigns. The signatories to this Agreed
Order certify that they are fully authorized to execute this Agreed Order 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.
19.
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 the Agreed Order did not contain the
invalid terms.
20.
The Respondent shall provide a copy of this Agreed Order, if
in force, to any subsequent owners of successors before ownership rights are transferred. Respondent shall by contract require that all
contractors, firms, and other persons acting for it comply with the terms of
this Agreed Order.
21.
This Agreed Order is not and shall not be interpreted to be
a Permit, or a modification of an existing Permit, nor shall it in any way
relieve the Respondent of its obligation to comply with the requirements of its
applicable Permit or with any other applicable federal or state law or
regulation.
22.
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 Permit, federal, or state law.
23.
This Agreed Order shall remain in effect until the
Respondent has complied with all terms and conditions of Order Paragraphs 2
through 17 of this Agreed Order, and Complainant has issued a close-out letter.
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TECHNICAL RECOMMENDATION: |
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RESPONDENT: |
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Department of Environmental Management |
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Town of |
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By: |
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By: |
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Mark W. Stanifer, Chief |
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Robert Gray, President |
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Water Enforcement Section |
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Andrews Town Council |
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Office of Enforcement |
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Date: |
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COUNSEL FOR COMPLAINANT: |
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COUNSEL
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Department of Environmental Management |
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By: |
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Office of Legal Counsel |
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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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DAY OF |
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For The Commissioner: |
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_Signed 1/4/06____ |
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Matthew T. Klein |
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Assistant Commissioner |
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Compliance and Enforcement |
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The portion of the
Compliance Plan required pursuant to Order Paragraph 3b 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;
h.
Documentation of all activities taken in order to implement
the portion of the CP required pursuant to Order Paragraph 3b.
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
3b, and
b.
Annual reviews by representatives of all levels of
management and staff to assess the overall effectiveness of the portion of the
CP required pursuant to Order Paragraph 3b, 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 3b, and
b.
Modification and update as necessary to ensure that the purpose
of the CP required pursuant to Order Paragraph 3b is achieved.