STATE OF INDIANA

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SS:

BEFORE THE INDIANA DEPARTMENT OF

 

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ENVIRONMENTAL MANAGEMENT

COUNTY OF MARION

)

 

 

 

COMMISSIONER OF THE DEPARTMENT

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OF ENVIRONMENTAL MANAGEMENT,

)

 

)

Complainant,

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)

v.

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Case No. 2013-21374-W

 

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HAMILTON-SOUTHEASTERN UTILITIES, INC.,

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)

Respondent.

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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 Indiana Code (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 IC 13-13-1-1.

 

2.            Respondent is Hamilton-Southeastern Utilities, Inc. (Respondent), which has its corporate office located at 11901 Lakeside Drive, Fishers, Indiana.  Respondent owns and operates a sewage collection system, including the manhole designated as MH-IC-2C-727.00 located northwest of the intersection of Bowline Drive and Florida Road, Intracoastal at Geist Subdivision, Fishers, in Hamilton County (Manhole) and a nearby sewage lift station located at 15195 Clove Hitch Court (Lift Station).

 

3.            IDEM has jurisdiction over the parties and the subject matter of this action pursuant to IC 13-30-3.

 

4.            Respondent is a public utility with a service area that includes the southeastern portion of Hamilton County and provides sanitary sewage service for the major portion of Fishers and some unincorporated areas nearby.  Since 1988, Respondent has had the management and operation of its facilities performed by Sanitary Management & Engineering Company, Inc. (SAMCO) which has its office at 11905 Lakeside Drive, in Fishers, Indiana.  SAMCO inspects and maintains for Respondent 25 lift stations, 5,000 manholes, and over a million feet of mainline sewers.  Respondent currently does not hold a National Pollutant Discharge Elimination System (NPDES) Permit from IDEM and transports sewage to the local municipal wastewater treatment plant.

 

5.            Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation (NOV) on March 12, 2013, via Certified Mail to:

 

Randolph L. Seger, Registered Agent

Kendall W. Cochran, President

for Hamilton-Southeastern Utilities, Inc.

Hamilton-Southeastern Utilities, Inc.

Bingham McHale, LLP

11901 Lakeside Dr.

2700 Market Tower

Fishers, IN 46038

10 West Market Street

 

Indianapolis, IN 46204

 

 

6.            During an investigation conducted by a representative of IDEM, the following violations were found:

 

A.           Pursuant to Indiana Code (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 which causes or would cause pollution which 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 5-2-2, any discharge of pollutants into waters of the state as a point source discharge, is prohibited unless in conformity with a valid National Pollutant Discharge Elimination System (NPDES) Permit obtained prior to discharge.

 

Pursuant to 329 IAC 10-4-2, no person shall cause or allow the storage, containment, processing, or disposal of solid waste in a manner which creates a threat to human health or the environment, including air or water pollution, or other contamination.

 

On June 20, 2012, Respondent reported an overflow release of an estimated 1000 gallons of sewage at the Manhole occurring on June 18, 2012, beginning at 8:30 p.m. due to pump and breaker failure at the Lift Station, and that the overflow stopped at 11:00 p.m.

 

At 9:10 p.m. Saturday, December 22, 2012, the IDEM Emergency Response spill line received a call from a private citizen in the Intracoastal at Geist Subdivision in Fishers, Indiana, who reported that there was ongoing overflow from the Manhole.  The citizen said there had been recent previous incidents and this time there was no known way to reach Respondent’s emergency contact.  The phone number posted at the Lift Station was only the office number and not an emergency number.  The citizen had repeatedly attempted to contact Respondent and SAMCO.  The Sheriff’s Department was also called to assist in getting a spill response.  There was sewage flowing out of the Manhole and into a residential yard and into a nearby storm drain that empties into nearby Geist Reservoir.  The citizen stated that earlier, other local residents had not known it was a sewage release but the odors were so strong it prompted a call to the Gas Utility, which resulted in an immediate response to check multiple homes for gas leaks.  Respondent provided information to IDEM that it learned of the overflow at 9:17 p.m. on Saturday, December 22, 2012 when a representative of Fishers Utilities notified SAMCO; that SAMCO dispatched a crew to respond to the overflow who arrived at the Lift Station between approximately 9:30 p.m. and 9:45 p.m.; and that at about 9:30 p.m. SAMCO requested an emergency response contractor to deploy a vactor truck at the Manhole.  A representative of Fishers Utilities communicated to the citizen that SAMCO’s crew was responding to the problem at the Lift Station.   Respondent faxed an improperly completed overflow report to the IDEM Office of Water Quality, fax number 232-8637, with signature dated December 23, 2012, with no entry of when the release ended.  Respondent subsequently supplied information to IDEM that the SAMCO employee who submitted the overflow report estimated that the overflow began at 8:00 p.m. on December 22, 2012; that the actual time the overflow began is unknown; and that the overflow stopped between approximately 9:45 p.m. and 10:00 p.m. on December 22, 2012.  In the overflow report, Respondent identified the Manhole as IC-2C-727.00 and estimated 2,500 gallons of flow was released due to a PLC (programmable logic controller) failure.  No information regarding mitigating the damage or clean up actions completed was on the report.  Respondent subsequently provided information to IDEM that upon arrival at the Lift Station the SAMCO crew restarted the pumps, shut down two other upstream lift stations which reduced the flow affecting the Manhole, replaced the PLC and assisted in the response at the Manhole by applying lime to the affected area of the yard after the emergency response contractor removed the sewage from the yard and drain catch basin and jetted the area with water.  Respondent’s release of sewage, a pollutant, from the Manhole to the ground which flowed into a storm sewer and then into Geist Reservoir was not in conformity with a valid NPDES Permit, in violation of 327 IAC 5-2-2, IC 13-30-2-1, and 329 IAC 10-4-2.

 

B.           An overflow report previously filed by Respondent indicates a previous incident of 25,000 gallons of sewage overflow to the ground to the storm sewer to Geist Reservoir occurred at the Manhole from 6:00 a.m. to 9:00 p.m. on January 20, 2009, due to a power failure causing a controller failure, and the backup battery on the controller did not function.  The controller failure caused variable frequency drive (VFD) and breaker problems.  A new pump, breaker and VFD were installed.

 

7.         Respondent has provided information to IDEM that since the overflow incident on December 22, 2012, the Respondent and SAMCO undertook the following corrective steps at the Lift Station to prevent future overflows from the Manhole, including:  replacing the backup dialer; reprogramming the SCADA system to monitor PLC operability; adding software to log wet well levels every 5 minutes and log pump on/off status; modifying the emergency message system at Respondent’s and SAMCO’s offices to ensure that callers are directed to the emergency phone number; providing local authorities with the emergency phone number; installing a power surge protector on the backup dialer; and SAMCO’s purchase of a vactor truck to provide enhanced emergency response capability.

 

8.         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 adopted by Complainant or Complainant’s delegate (as evidenced by signature), and the adopted Agreed Order has been received by Respondent.  This Agreed Order shall have no force or effect until the Effective Date.

 

2.            Respondent shall comply with the statute and rules listed in the findings above at issue.

 

3.            Beginning on the Effective Date and during the term of this Agreed Order, in the event of a sewage spill at the Manhole (MH-IC-2C-727.00) into Geist Reservoir, Respondent shall upon discovery comply with the Spill Rule, 327 IAC 2-6.1-7, and contain the spill, if possible, to prevent additional sewage from entering Geist Reservoir; undertake or cause others to undertake activities needed to accomplish a spill response; and as soon as possible, but within two hours of discovery, communicate a spill report to IDEM’s Office of Land Quality, Emergency Response Section at 1-888-233-7745.

 

4.            Within 60 days of the Effective Date of this Agreed Order, Respondent shall develop and submit to IDEM for its approval a compliance plan (CP) that includes the following:

 

a.            actions that Respondent will take to prevent discharges from the Manhole, including but not limited to having functional alarms and backup alarm and alarm power systems at the Lift Station, and a system where someone can be contacted 24/7 in the event of an emergency;

 

b.            actions that Respondent will take to ensure that the collection system is at all times efficiently operated and maintained in good working order.  Specific requirements that need to be included in this part of the CP are included in Attachment A which is hereby incorporated into this Agreed Order and deemed an enforceable part thereof; and

 

c.            an implementation and completion schedule, including specific milestone dates for developing and implementing the items required by items a and b above.

 

5.            Respondent shall, within 12 months of the completion of the portion of the CP required by Order Paragraph 4a (Performance Period), demonstrate a period of 12 consecutive months that discharges from the Manhole into residential yards and/or local storm sewer do not occur (Compliance Demonstration).  During the Performance Period, Respondent shall be subject to stipulated penalties, as specified below.  Within fifteen days of the date that Respondent fails to achieve the Compliance Demonstration or it becomes aware that it will not be able to achieve the Compliance Demonstration within the Performance Period, it shall develop and submit to IDEM, for approval, a plan which identifies the additional actions that Respondent will take to eliminate discharges from the Manhole.  This “Additional Action Plan”, if required, shall include a new implementation and completion schedule, including specific milestone dates.

 

6.            The plans required by Paragraphs 4 and 5 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.  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 Respondent to submit any plan by the specified date, or to meet any of the milestones in the approved plan will subject 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.

 

7.            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.

 

8.            All submittals required by this Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall be sent either by mail or e-mail to:

 

Paul Cluxton, Enforcement Case Manager

Indiana Department of Environmental Management

Surface Water, Operations & Enforcement Branch

Office of Water Quality – Mail Code 60-02W

100 North Senate Avenue, Room 1255

Indianapolis, IN 46204-2251

E-mail: pcluxton@idem.in.gov

 

9.            Respondent is assessed and agrees to pay a civil penalty of Five Thousand Two Hundred Fifty Dollars ($5,250).  Said penalty amount shall be due and payable to the Environmental Management Special Fund within 30 days of the Effective Date; the 30th day being a “Due Date.”

 

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

 

Paragraph

Violation

Stipulated Penalty

 

3

Failure to comply with the Spill Rule.

$750 for failure to comply with the Spill Rule

4

Failure to submit the initial CP, as required, within the given time period.

$250 per each week late

5

Sewer overflow events that occur at the Manhole during the Performance Period that are attributable to Respondent’s failure to adhere to its Compliance Plan.

$1000 for each event

5

Failure to submit an initial Additional Action Plan, if required, within the given time period.

$250 per each week late

6

Failure to submit or resubmit a revised CP or revised Additional Action Plan, if required, within the given time period.

$250 per each week late

6

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

$500 per each week late

7

Failure to notify IDEM of completion of milestone item.

$250 per each week late

 

Stipulated penalties shall be due and payable no later than the 30th day after Respondent receives written notice that IDEM has determined a stipulated penalty is due; the 30th day being a “Due Date.”  IDEM may notify Respondent at any time that a stipulated penalty is due.  Failure to notify Respondent in writing in a timely manner of a stipulated penalty assessment shall not waive IDEM’s right to collect such stipulated penalty or preclude IDEM from seeking additional relief against Respondent for violation of this Agreed Order.  Neither assessment nor payment of stipulated penalties shall preclude IDEM from seeking additional relief against Respondent for a violation of this Agreed Order.  Such additional relief includes any remedies or sanctions available pursuant to Indiana law, including, but not limited to, civil penalties pursuant to IC 13-30-4.

 

11.         Civil and stipulated penalties are payable when due 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

 

12.         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.

 

13.         In the event that the monies due to IDEM pursuant to this Agreed Order are not paid on or before their Due Date, Respondent shall pay interest on the unpaid balance and any accrued interest at the rate established by IC 24-4.6-1-102.  The interest shall be computed as having accrued from the Due Date until the date that Respondent pays any unpaid balance.  The interest shall continue to accrue on the first of each month until the civil penalty and any interest accrued are paid in full.  Such interest shall be payable to the Environmental Management Special Fund, and shall be payable to IDEM in the manner specified above.

 

14.         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.

 

15.         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.

 

16.         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 any applicable Federal or State law or regulation.

 

17.         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.

 

18.         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.

 

19.         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.

 

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 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.

 

21.         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.

 

22.         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.

 

23.         This Agreed Order shall remain in effect until Respondent has complied with all terms and conditions of Order Paragraph Nos. 3 through 10 and IDEM issues a Resolution of Case (close out) letter.

 

REMAINDER OF PAGE INTENTIONALLY LEFT BLANK

 

TECHNICAL RECOMMENDATION:

RESPONDENT:

Department of Environmental Management

Hamilton-Southeastern Utilities, Inc.

 

By: ________________________

By:  ________________________

Mary E. Hollingsworth, Branch Chief

 

Surface Water, Operations &

Printed: ______________________

Enforcement Branch

 

Office of Water Quality

Title: ________________________

 

Date: __________________

Date: _______________________

 

 

COUNSEL FOR RESPONDENT:

Bingham Greenebaum Doll LLP

 

 

 

By: ______________________

Partner

 

 

Date: ______________________

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS _____ DAY OF ________________________, 20___.

 

 

For the Commissioner:

 

 

Signed on July 15, 2013

 

Bruno Pigott

 

Assistant Commissioner

 

Office of Water Quality

 

Attachment A

 

The portion of the Compliance Plan required pursuant to Order Paragraph 4b 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 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,

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.         Documentation of all activities taken in order to implement the portion of the CP required pursuant to Order Paragraph 4b.

 

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 4b, 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 4b, 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 4b, and

b.         Modification and update as necessary to ensure that the purpose of the CP required pursuant to Order Paragraph 4b is achieved.