STATE OF INDIANA

COUNTY OF MARION

)
)
)


SS:

BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v.

UTILITY CENTER, INC.,

Respondent.

)
)
)
)
)
)
)
)
)
)






Case No. 2010-18952-W

 

AGREED ORDER

 

Complainant and Respondent desire to settle and compromise this action without hearing or adjudication of any issue of fact or law, and consent to the entry of the following Findings of Fact and Order. Pursuant to IC 13-30-3-3, entry into the terms of this Agreed Order does not constitute an admission of any violation contained herein.  Respondent's entry into this Agreed Order shall not constitute a waiver of any defense, legal or equitable, which Respondent may have in any future administrative or judicial proceeding, except a proceeding to enforce this order.

 

I.  FINDINGS OF FACT

 

1.                  Complainant is the Commissioner (“Complainant”) of the Indiana Department of Environmental Management (“IDEM”), a department of the State of Indiana created by Indiana Code (“IC”) 13-13-1-1.

 

2.                  Respondent is Utility Center, Inc. (“Respondent”), which owns and operates a major semi-public wastewater treatment plant located at 9741 Woodland Ridge East, Fort Wayne, Allen County, Indiana (the “Site”).

 

3.                  Respondent is authorized by National Pollutant Discharge Elimination System (“NPDES”) Permit Number IN 0035378 (the "Permit") to discharge wastewater treated in accordance with the terms and conditions of the NPDES Permit from the outfall identified in Part I of the Permit to receiving waters named Graham McCulloch Ditch in accordance with the effluent limitations, monitoring requirements, and other conditions set forth in the Permit. Respondent's collection system consists of 100% separate sanitary sewers by design.

 

4.                  IDEM has jurisdiction over the parties and the subject matter of this action.

 

5.                  Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation (“NOV”) on March 17, 2010, via Certified Mail to:

 

Utility Center, Inc.

and to:

Utility Center, Inc.

Nicholas DeBenedictis, Director

 

Corporation Service Company

762 W. Lancaster Avenue

 

251 E. Ohio Street, Suite 500

Bryn Mawr, PA  19010

 

Indianapolis, IN  46204

 

6.                  Pursuant to 327 IAC 5-2-2, any discharge of pollutants into the 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.

 

Pursuant to 327 IAC 5-2-8(1) and Part II.A.1 of the Permit, Respondent is required to comply with all terms and conditions of its Permit.  Any permit noncompliance constitutes a violation of the Clean Water Act (CWA) and IC 13 and is grounds for enforcement action.

Pursuant to Attachment A of the Permit, overflows in the sanitary sewer system or in a sanitary portion of a combined sewer system are expressly prohibited from discharging at any time.  Should any release from the sanitary sewer system occur, Respondent is required to notify IDEM orally within 24 hours and in writing within 5 days of the event in accordance with the requirements in Part II.C.3. of the Permit.  The correspondence shall include the duration and cause of discharge as well as the remedial action taken to eliminate it.  The overflow duration and estimate flow shall also be reported in the Monthly Report of Operation (MRO) form.

7.                  A record review of MROs and overflow incident reports submitted by Respondent from March 1, 2007 through December 31, 2009, indicate that Respondent has reported that SSOs from Respondent's sanitary sewer system occurred on 27 days from March 1 through December 31, 2007, 29 days during 2008, and 22 days during 2009.  These prohibited overflows were in violation of Attachment A of the Permit, 327 IAC 5-2-8(1) and Part II.A.1 of the Permit, 327 IAC 5-2-2, and therefore violated IC 13-30-2-1.

8.                  "Sanitary Sewer Overflow" or "SSO", for the purposes of this Agreed Order, shall mean an overflow, spill, release, or diversion of wastewater from a sanitary sewer system.  SSO's include, but are not limited to:  (1) overflows or releases of wastewater that reach waters of the State; and (2) overflows or released of wastewater that do not reach waters of the State.  For purpose of this Agreed Order, notwithstanding the MRO reporting requirements as promulgated, each SSO shall constitute a single event regardless of time or duration such that two (2) separate events occurring in a single day shall constitute two (2) SSOs; or, one (1) single event occurring prior to and continuing past 12 o'clock midnight shall constitute one (1) SSO.

9.                  Respondent has indicated that certain SSO events were caused by intervening acts of third parties and not the result of or caused by any action or maintenance issues by Respondent or its system.  Respondent has also indicated that Respondent has diligently undertaken to determine the cause of and repair or otherwise mitigate those SSO events to date, including but not limited to:  a) Repairing controls on the WTP pump station; b) Replacing pumps in December of 2007 and January of 2008; c) Replacing force main in January of 2009; d) Sewer re-lining in 2009; e) Noting specific areas for increased maintenance; f) Rebuilding a manhole in November of 2008; g) Replacing alarm backup system; h) Purchase and installation of a new generator for a pump station; i) Replacing Roto Phase, rewiring generator connection in June of 2009; j) Rebuilding pumps in June 2009; and k) Changing WTP controls, recycle of back wash water.

10.             Pursuant to 327 IAC 5-2-8(8) and Part II.B.1 of the Permit, Respondent is required to, at all times, maintain in good working order and efficiently operate all facilities and systems (and related appurtenances) for collection and treatment that are:  (1) installed or used by Respondent; and (2) necessary for achieving compliance with the terms and conditions of the Permit.

During an inspection conducted at the Site by IDEM staff on July 9, 2008, it was noted by IDEM staff that the overall plant is well operated and maintained, however the maintenance of the collection system was evaluated as unsatisfactory due to the SSOs.  IDEM staff noted that the collection system maintenance needed to be addressed to reduce the number of SSOs.

During an inspection conducted at the Site by IDEM staff on December 17 and 21, 2009, it was noted by IDEM staff that the sanitary sewer overflows and the maintenance were unsatisfactory because of:  A) the SSOs; B) records indicative of inflow and infiltration (I&I) of storm water and ground water into the sanitary sewers; and C) a need for improved maintenance to prevent some of the sanitary sewer overflows.

Failure to maintain in good working order and to efficiently operate a collection system is in violation of 327 IAC 5-2-8(8) and Part II.B.1 of the Permit, and 327 IAC 5-2-8(1) and Part II.A.1 of the Permit.

11.             In recognition of the settlement reached, Respondent waives any right to administrative and judicial review of this Agreed Order.

 

II.  ORDER

 

1.                  This Agreed Order shall be effective (“Effective Date”) when it is approved by Complainant or Complainant’s delegate, and has been received by Respondent.  This Agreed Order shall have no force or effect until the Effective Date.

 

2.                  Upon the Effective Date, this Agreed Order shall supersede and replace in its entirety all previous Agreed Orders between the parties and all previous deadlines, submissions compliance or other plans.

 

3.                  Respondent shall comply with statutes, rules, and/or permit conditions or listed in the findings here and/or above at issue.

 

4.                  Within 60 days of the Effective Date of this Agreed Order, the Respondent shall develop and submit to IDEM for approval a Compliance Plan (CP) which identifies actions that Respondent will take to evaluate and implement means to cease all unpermitted sewer overflows from its collection system.  The CP shall include an implementation and completion schedule, including specific milestone dates.  Upon completion of the actions required by the CP, the Respondent shall be subject to stipulated penalties, as specified below, for unpermitted sewer overflows from its collection system.

 

5.                  As part of its CP, Respondent shall review and update as necessary its Wastewater Sewer Collection System Operation & Maintenance Program guidance ("O&M Program") to ensure that it is adequate and is being implemented.

 

6.                  Respondent shall, within six months of completion of the work required pursuant to the Compliance Plan under Paragraph 4 above, demonstrate six consecutive months of compliance (Compliance Demonstration) with no unpermitted sewer overflows from its collection system.  Respondent may submit to IDEM, for review and approval, a written request to terminate the Compliance Demonstration early, provided that the following conditions are satisfied:  Respondent demonstrates for at least 3 consecutive months, commencing upon the completion of the work required pursuant to the Compliance Plan, with no unpermited sewer overflows from its collection system, and Respondent demonstrates that the adequacy of the Compliance Plan has been sufficiently tested by documenting, for example, that a wide range of storm events has occurred.

 

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 cease unpermitted sewer overflows from its collection system.  The Additional Action Plan, if required, shall include an implementation and completion schedule, including specific milestone dates.

 

7.                  The plans required by Paragraphs 4 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 take additional enforcement action against Respondent.

 

Respondent, upon receipt of written notification and approval from IDEM, shall immediately implement the approved plan and adhere to the milestone dates therein.  The approved CP and any Additional Action Plan shall be incorporated into the Agreed Order and shall be deemed an enforceable part thereof.  Failure by 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 cease unpermitted sewer overflows from the Respondent's collection system at the conclusion of work under an Additional Action Plan will subject Respondent to additional enforcement action.

 

8.                  Beginning on the Effective Date and continuing until the successful completion of the CP provided for by Paragraph 4 above, and if required, the Additional Action Plan provided for by Paragraph 6, Respondent shall, at all times, operate its POTW (including the collection system and lift stations) as efficiently and effectively as possible, and shall be subject to stipulated penalties for its failure to comply with the overflow monitoring requirements, overflow response requirements, and overflow reporting requirements of the Permit and 327 IAC 2-6.1.

 

9.                  Beginning on the Effective Date, the Respondent shall undertake inspection of all locations in the sanitary sewer collection system that are known to have had unpermitted sewer overflows during and/or after precipitation events since March 2001 in order to determine whether discharges from these points occur.  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 and, for inspections conducted after the precipitation event, the time the precipitation event ended, and the volume of the precipitation event;

 

e.                  the particular overflow point being inspected;

 

f.                    the appearance of the overflow point, and the surrounding area, specifically noting whether a discharge event from the overflow point occurred, is occurring, or is about to occur; and

 

g.                  the remedial measures taken in the event that a discharge from the overflow point is found to have occurred, to be occurring, or about to occur.

 

Respondent shall retain copies of the required documentation and shall allow IDEM representatives to inspect and copy these records upon request.

 

10.             Beginning on the Effective Date, in the event that a known discharge from any unpermitted sewer overflow from the wastewater collection system occurs, 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 to IDEM as required by the Permit, including reporting the "Actions Taking to Prevent, Minimize, or Mitigate Damage" and "Actions Taken or Planned to Prevent Recurrence" on the Bypass/Overflow Incident Reports; and

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.

 

11.             All submittals required by this Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall be sent to:

 

Terry Ressler, Enforcement Case Manager

Indiana Department of Environmental Management

Office of Water Quality – Mail Code 60-02W

100 North Senate Avenue, Room 1255

Indianapolis, IN 46204-2251

 

12.             Respondent is assessed a civil penalty of Twenty-Five Thousand Dollars ($25,000).  Within thirty days of the Effective Date of the Agreed Order, Respondent shall pay a portion of this penalty in the amount of $5,000.  Said penalty amount shall be due and payable to the Environmental Management Special Fund.  In lieu of payment of the remaining civil penalty, Respondent shall perform and complete a Supplemental Environmental Project (SEP).  Respondent estimates that this SEP will cost $40,000.  Within 30 days of completing this SEP, Respondent shall submit written notice and documentation to IDEM which substantiates all actions taken and costs incurred with respect to the SEP.  In the event that the cost of the SEP is less than $40,000, Respondent shall pay 50% of the difference between the proposed cost of the SEP ($40,000) and the actual cost of the SEP.

 

As a Supplemental Environmental Project, the Septic Tank Elimination Program submitted by Respondent on July 26, 2010, Respondent shall offer capital assistance for sewer main extensions to residents in Respondent's territorial authority who have failing septic systems and petition of Respondent for sewer service.  Respondent will offer $1,500 in capital assistance for each property owner that submits written request for a sewer extension for up to 30 property owners.  Respondent shall complete the SEP by no later than 5 years from the Effective Date of this Order.   Implementation of this SEP will assist in providing sanitary sewer service to up to 30 properties, and eliminate pollution caused by the properties' failing septic systems.

 

In the event that Respondent does not end up providing assistance to 30 property owners within 5 years from the Effective Date of the Order, the full amount of the civil penalty as stated above, plus interest established by IC 24-4.6-1-101 on the remaining amount, less the portion of the civil penalty Respondent has already paid, will be due within fifteen days from Respondent's receipt of IDEM’s notice to pay.  Interest, at the rate established by IC 24-4.6-1-101, shall be calculated on the amount due from the date which is thirty days after the Effective Date until the full civil penalty is paid.

 

13.             In the event the terms and conditions of the following paragraphs are violated, Complainant may assess and Respondent shall pay a stipulated penalty in the following amount:

 

Paragraph Number

Violation

Penalty Amount

4,7

Failure to submit the CP within 60 days of the Effective Date, or modify the CP, as required, within the given time period.

$500 per each week late or part thereof

5

Failure to review and update as necessary the O&M Program to ensure that it is adequate and is being implemented, as part of the CP.

$500 per each week late or part thereof

4

For unpermitted sewer overflows after completion of the actions in the approved Compliance Plan.

$500 per unpermitted sewer overflow

6,7

Failure to submit an Additional Action plan within 60 days of becoming aware that the Compliance Demonstration cannot be achieved, or to modify the Additional Action Plan, if required, within the given time period.

$500 per each week late or part thereof

7

Failure to meet any milestone date set forth in the approved CP or Additional Action Plan.

$500 per each week or part thereof

8

Failure to comply with the overflow monitoring, response, or reporting requirements of 327 IAC 2-6.1.

$500 per violation

9

Failure to inspect overflow points during and/or after precipitation events, failure to document the inspections by recording the required information, and/or failure to retain copies of the required documentation and allow inspection of these records upon request. 

$500 per violation

10

In the event of an unpermitted discharge, failure to respond as required.

$500 per violation

 

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

 

15.             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:

 

Indiana Department of Environmental Management

Cashier – Mail Code 50-10C

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

16.             Force majeure, for purposes of this Agreed Order, is defined as any event arising from causes totally beyond the control and without fault of 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 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 (1) changed business or economic conditions; (2) financial inability to complete the work required by this Agreed Order; or (3) increases in costs to perform the work.

 

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 Respondent contends is a force majeure.  Such notification shall describe (1) the anticipated length of the delay; (2) the cause or causes of the delay; (3) the measures taken or to be taken by Respondent to minimize the delay; and (4) the timetable by which these measures will be implemented.  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. 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.

 

Within forty-five (45) days of receiving Respondent's notice of a delay or impediment to performance, IDEM shall notify Respondent in writing of whether IDEM agrees with Respondent's claim of force majeure, if any.  If IDEM agrees that the delay or failure of performance has been or will be caused entirely by circumstances beyond the control of Respondent or any entity controlled by Respondent, including Respondent's consultants and contractors:  1) the time for performance of such requirement shall be extended for a period not to exceed that actual delay resulting  from such circumstance, and stipulated penalties shall not be due for said delay; or 2) the performance of such requirement may be excused by agreement of both parties, whichever may be applicable.

 

17.             This Agreed Order shall apply to and be binding upon Respondent and its successors and assigns.  Respondent’s signatories to this Agreed Order certify that they are fully authorized to execute this Agreed Order and legally bind the party they represent.  No change in ownership, corporate, or partnership status of Respondent shall in any way alter its status or responsibilities under this Agreed Order.

 

18.             In the event that any terms of this Agreed Order are found to be invalid, the remaining terms shall remain in full force and effect and shall be construed and enforced as if this Agreed Order did not contain the invalid terms.

 

19.             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.

 

20.             This Agreed Order is not and shall not be interpreted to be a permit or a modification of an existing permit.  This Agreed Order, and IDEM’s review or approval of any submittal made by Respondent pursuant to this Agreed Order, shall not in any way relieve Respondent of its obligation to comply with the requirements of its applicable permits or any applicable Federal or State law or regulation.

 

21.             Complainant does not, by its approval of this Agreed Order, warrant or aver in any manner that Respondent’s compliance with any aspect of this Agreed Order will result in compliance with the provisions of any permit, order, or any applicable Federal or State law or regulation.  Additionally, IDEM or anyone acting on its behalf shall not be held liable for any costs or penalties Respondent may incur as a result of Respondent’s efforts to comply with this Agreed Order.

 

22.             Nothing in this Agreed Order shall prevent or limit IDEM’s rights to obtain penalties or injunctive relief under any applicable Federal or State law or regulation, except that IDEM may not, and hereby waives its right to, seek additional civil penalties for the same violations specified in the NOV.

 

23.             Nothing in this Agreed Order shall prevent IDEM [or anyone acting on its behalf] from communicating with the EPA or any other agency or entity about any matters relating to this enforcement action.  IDEM or anyone acting on its behalf shall not be held liable for any costs or penalties Respondent may incur as a result of such communications with the EPA or any other agency or entity.

 

24.             This Agreed Order shall remain in effect until Respondent has complied with all terms and conditions of Order Paragraph Nos. 4 through 15 and IDEM issues a Resolution of Case letter.

 

TECHNICAL RECOMMENDATION:

RESPONDENT:

Department of Environmental Management

Utility Center, Inc.

 

 

By:________________________

By:________________________

 

Mark W. Stanifer, Chief

 

 

Water Enforcement Section

 

Office of Water Quality

 

 

 

Date:__________________

Date:_______________________

 

 

COUNSEL FOR COMPLAINANT:

COUNSEL FOR RESPONDENT:

For the Department of Environmental Management

 

 

 

By:____________________

By:______________________

 

 

 

 

 

Date:_______________________

Date:______________________

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

______

DAY OF

________________________

, 200

___

.

 

 

For the Commissioner:

 

 

 

Signed on September 1, 2010

 

Bruno Pigott

 

Assistant Commissioner

 

Office of Water Quality