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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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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. 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 Lakeville (Respondent), which owns and operates a publicly owned
treatment works (POTW) comprised of a 100% separate sanitary sewer collection
system and a 0.13 MGD controlled discharge lagoon wastewater treatment plant
(WWTP), located in Lakeville, St. Joseph County, Indiana, (Site).
3.
The Respondent
is authorized by National Pollutant Discharge Elimination System (NPDES) Permit
No. IN0023540 (the Permit) to discharge treated municipal and/or domestic
wastewater from its POTW via Outfall Nos. 001 and 005 into waters of the State (Shidler-Hoffman
Ditch) in accordance with effluent limitations, monitoring requirements, and
other conditions set forth therein.
4. The
5. Pursuant to IC 13-30-3-3, IDEM issued a
Notice of Violation (NOV) on August 1, 2006, via Certified Mail to Mr. Fred
Holdeman, President, Lakeville Town Council.
6.
A record review
was conducted at the Site by a representative of IDEM’s Office of Water Quality
(OWQ). The violations described in
Findings Paragraph Nos. 7 through 13 were in existence or observed at the time
of the record review, and were cited in the NOV.
7. Pursuant to Indiana Code (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 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.
8. 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 sections 1 and 3 of this chapter.
9. Pursuant to 327 IAC 5-2-8(8), the
permittee shall at all times maintain in good working order and efficiently
operate all facilities and systems (and related appurtenances) for collection
and treatment that are:
A.
Installed or used by the permittee; and
B.
Necessary for achieving compliance with the terms and
conditions of the permit.
10. 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.
11. Pursuant to 327
12. Attachment
A of the Permit expressly prohibits overflow/discharge to Lobe Ditch from
Sanitary Sewer Overflow (SSO) No. 003 located at the Grand Street Lift Station.
13. The Respondent reported to IDEM wet
weather overflows occurred at SSO No. 003 on November 18, 2003; June 12, 2004;
July 21, 2005; and March 13, 2006. These
discharges are in violation of IC 13-18-4-5, IC 13-30-2-1(1), 327 IAC 5-2-8(1),
327 IAC 5-2-8(8), and Parts II.A.1, II.B.1, and Attachment A of the Permit.
14. The Respondent reported to IDEM that a
wet weather overflow occurred at SSO No. 003 on July 18, 2006, during a
2.2-inch rain event. This discharge was not
cited in the NOV issued August 1, 2006, and was in violation of IC 13-18-4-5, IC
13-30-2-1(1), 327 IAC 5-2-8(1), 327 IAC 5-2-8(8), and Parts II.A.1, II.B.1, and
Attachment A of the Permit. The
Respondent waives issuance of a NOV and to the settlement period of 60 days as
provided for by IC 13-30-3-3 for this violation.
15. 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 13-18-4-5, IC 13-30-2-1(1), 327 IAC 5-2-8(1), 327 IAC 5-2-8(8), and
Parts II.A.1, II.B.1, and Attachment A 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 90 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 to prevent/eliminate discharges from SSO No. 003 and to achieve and maintain
continuous compliance with all terms and conditions contained in the Permit.
B.
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.
C.
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 No. 4.A, be subject to the stipulated penalties specified in
Order Paragraph No.17 below for any event of bypass of wastewater treatment.
6.
The Respondent
shall, within 12 months of the completion of the portion of the CP required by
Order Paragraph No. 4.A (Performance Period), demonstrate no discharges from
SSO No. 003 for a period of 11 consecutive months. In the event that an SSO discharge occurs during
the Performance Period, the Respondent shall, within 60 days of becoming aware
of the SSO discharge, submit to IDEM for its approval, an Additional SSO
Elimination Compliance Plan, that includes a description of the additional
actions that the Respondent will take to achieve and maintain elimination of
SSOs and a schedule, including specific milestone dates for initiating and
completing such actions.
7.
The plans
required by Order Paragraph Nos. 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 SSO No. 003 overflow point in 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 sewer
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:
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Paul Cluxton,
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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16. The Respondent is assessed a civil penalty of Eight Hundred
Twenty-Five Dollars ($825). 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:
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Order Paragraph Number |
Violation
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Penalty Amount |
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4 |
Failure to submit the CP, as
required. |
$250 per each week or part thereof late |
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5 |
Failure to cease sewage
overflows subsequent to completion of implementation of the portion of the CP
required pursuant to Order Paragraph 4.A. |
$1000 per violation |
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6 |
Failure to submit Additional
SSO Elimination Compliance Plan, if required. |
$250 per each week or part thereof late |
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7 |
Failure to revise and
resubmit any plan required pursuant to this Agreed Order, as required. |
$250 per each week or part thereof late |
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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 |
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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 |
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12 |
Failure
to timely submit certification statement |
$250 per each week or part thereof late |
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13 |
Failure
to inspect sanitary collection system, as required |
$500 per violation |
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13 |
Failure
to document inspections of sanitary collection system or make documentation
available to IDEM, as required |
$500 per violation |
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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 |
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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 (2006-15679-W) of this action and shall be mailed to:
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Indiana Department of Environmental Management |
Cashiers Office – Mail Code
50-10C
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20.
In the event
that the civil penalty required by Order Paragraph No. 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. 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 the
Respondent pursuant to this Agreed Order, shall not in any way relieve the
Respondent of its obligation to comply with the requirements of any applicable
permit or order or with any other applicable federal or state law or
regulation.
25. 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
any permit or 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 the Respondents may
incur as a result of Respondent’s efforts to comply with this Agreed Order.
26. 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 seek additional civil
penalties for the violations specified in the Notice of Violation and Findings
of Fact.
27. Nothing in this Agreed Order shall prevent IDEM or anyone
acting on its behalf from communicating with the United States Environmental
Protection Agency (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 the Respondent may incur as a result of such communications
with the EPA or any other agency or entity.
28. This Agreed Order shall remain in effect
until the Respondent complies with the terms of Order Paragraph Nos. 3 through
20 and until IDEM issues a Close-Out letter to the Respondent.
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TECHNICAL RECOMMENDATION: |
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RESPONDENT: |
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Department of Environmental Management |
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Mark
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Section
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Office of Enforcement |
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COUNSEL FOR COMPLAINANT: |
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COUNSEL FOR RESPONDENT: |
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Department of Environmental Management |
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Office of Legal Counsel |
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APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF
ENVIRONMENTAL |
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MANAGEMENT THIS |
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For The Commissioner: |
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Signed on February 6, 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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The additional portion of the Compliance Plan
required pursuant to Order Paragraph No. 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, if any, 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
(three years); and
h. Documentation
of all activities taken in order to implement the portion of the CP required
pursuant to this Attachment A.
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 No. 4; 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 No. 4; and
b. Modification
and update as necessary to ensure that the purpose of the CP required pursuant
to Order Paragraph No. 4 is achieved.