STATE OF INDIANA

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SS:

BEFORE THE INDIANA DEPARTMENT OF

 

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ENVIRONMENTAL MANAGEMENT

COUNTY OF MARION

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COMMISSIONER OF THE DEPARTMENT

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OF ENVIRONMENTAL MANAGEMENT,

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Complainant,

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v.

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Case No. 2018-24999-W

 

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City of Scottsburg,

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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.             The City of Scottsburg (Respondent) owns and operates the Scottsburg Wastewater Treatment Plant (WWTP), located at Montgomery and Third Streets, in Scottsburg, Scott County, Indiana (the Site).

 

3.             Respondent is authorized by its National Pollutant Discharge Elimination System (NPDES) Permit No. IN0020397 (the Permit), to discharge wastewater treated in accordance with the terms and conditions of the NPDES Permit from its WWTP into McClain Ditch from Outfall 001.

 

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

 

5.             On August 13, 2013, July 26, 2016, and September 29, 2017, Sewer Ban Early Warning letters were issued notifying the Respondent that the imposition of a Sewer Connection Ban by IDEM may be necessary due to the chronic hydraulic overload conditions at the Scottsburg WWTP.

 

6.             Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation (NOV) via Certified Mail to: Honorable William H. Graham, Mayor, City of Scottsburg, 2 East McClain Avenue, Scottsburg, IN  47170.

 

7.             During an investigation conducted by a representative of IDEM, violations were found, as described below.

 

8.             Pursuant to 327 Indiana Administrative Code (IAC) 5-2-8(1), Respondent shall comply with all terms and condition of the Permit.  Any permit noncompliance constitutes a violation of the Clean Water Act and IC 13 and is grounds for enforcement action by IDEM.

 

9.             Pursuant to Part I.A.1 of the Permit, the permittee is required to comply with the monitoring requirements contained in the Permit, including effluent limitations.

 

Discharge Monitoring Reports (DMRs) and Monthly Reports of Operation (MROs) submitted by the Respondent revealed effluent limitation violations and monitoring requirement violations contained in the Permit as follows:

 

a.    The maximum weekly average concentration for ammonia nitrogen was exceeded during March and June 2015.

 

b.    The maximum weekly average for cyanide and a monthly average concentration for cyanide were exceeded in June 2015.

 

c.    The daily maximum concentration for E.coli was exceeded during April, June, August, September, October 2015, and July and October 2016.

 

d.    The maximum weekly average and the monthly average limits for total suspended solids (TSS) were exceeded during November 2015 and November 2017.

 

e.    Respondent failed to conduct quarterly sampling of the effluent gross and the raw sewage influent for nickel, silver, zinc, cadmium, lead, chromium, and copper during June 2017.

 

f.      Respondent failed to conduct semi-annual sampling of the sludge for copper, cadmium, molybdenum, zinc, lead, nickel, and mercury during June 2017.  Monitoring results for the above-listed parameters were submitted late during August 2017.

 

Respondent failed to comply with the effluent limitations and the sampling requirements, in violation of Part I.A.1 of the Permit, and 327 IAC 5-2-8(1).

 

10.      Pursuant to Part II.B.1(a) of the Permit and 327 IAC 5-2-8(9), 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.

 

Pursuant to Part II.B.1(b) of the Permit, the permittee shall operate the permitted facility in a manner which will minimize upsets and discharges of excessive pollutants.

 

As noted during inspections conducted on February 17, 2015, February 16, 2016, and December 12, 2016, the WWTP routinely experienced excessive inflow and infiltration in the collection system resulting in a hydraulically overload at the WWTP.  The chronic hydraulic overload conditions contribute to the facility’s failure to consistently meet effluent limitations, in violation of Part II.B.1 of the Permit and 327 IAC 5-2-8(9).

 

11.         Pursuant to 327 IAC 3-2-1.5, no person shall cause or allow the construction, installation, or modification of any water pollution treatment/control facility or sanitary sewer without a valid construction permit issued by the commissioner.

 

Pursuant to 327 IAC 3-2-2, construction shall not commence until all necessary state approvals and permits are obtained.

 

As noted during an inspection conducted on December 6, 2017, Respondent constructed a phosphorus treatment facility (building with chemical feed system) at the WWTP without a valid construction permit issued by the Commissioner, in violation of 327 IAC 3-2-1.5 and 327 IAC 3-2-2.

 

12.         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.  In addition to addressing the violations cited in Paragraphs 9 through 11 of the Findings of Fact above, this Agreed Order also addresses any additional violations of these same rules that may have occurred subsequent to the issuance of the NOV and prior to the Effective Date.

 

2.             Respondent shall comply with rules, statutes, and permit conditions listed in the findings above at issue.  Specifically, Respondent shall comply with Part I.A.1 of the Permit, Part II.B.1(a) of the Permit and 327 IAC 5-2-8(9), 327 IAC 3-2-1.5, 327 IAC 3-2-2.

 

3.             Within 30 days of the Effective Date, Respondent shall develop and submit to IDEM for approval a Compliance Plan (CP) which identifies actions that Respondent will take to achieve and maintain compliance with its Permit, specifically including the actions Respondent will take to:

A.            Achieve and maintain compliance with effluent limitations contained in the Permit, specifically those listed in Part 1.A of the Permit;

B.            Develop and implement a preventative maintenance program for the sanitary sewer collection system, which includes methods and milestone dates for locating and eliminating sources of inflow and infiltration (I/I) in the sewer system;

C.            Comply with reporting requirements of the permit; and

D.            Achieve and maintain compliance with Facility Operation, Maintenance, and Quality Control requirements listed in Part II.B of the Permit.

 

The CP shall include an implementation and completion schedule, including specific milestone dates.

 

4.             Respondent shall, after completion of the work required pursuant to the approved CP from Paragraph 3 above, demonstrate six (6) consecutive months of compliance (Compliance Demonstration) with the terms and conditions of the Permit, specifically including compliance with effluent limitations, reporting requirements, and operation and maintenance.  During the Compliance Demonstration, Respondent shall be subject to stipulated penalties, as specified below, for violations of the terms and conditions of the Permit.

 

In the event that violations occur during the Compliance Demonstration, within 60 days of the violation, Respondent shall develop and submit to IDEM, for approval, an Additional Action Plan which identifies the additional actions that Respondent will take to achieve and maintain compliance with the terms and conditions of the Permit.  The Additional Action Plan, if required, shall include an implementation and completion schedule, including specific milestone dates.

 

5.             The plans required by Paragraphs 3 and 4 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 seek civil enforcement of this Order.

 

6.             Respondent, upon receipt of written notification from IDEM, shall immediately implement the approved plan(s) and adhere to the milestone dates therein.  The approved CP 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(s), will subject Respondent to stipulated penalties as described below.  Following completion of the actions included in the Additional Action Plan, the 6-month Compliance Demonstration, as specified in Paragraph 4 above, will re-start, and Respondent shall be subject to stipulated penalties, as specified below, for violations of the terms and conditions of the Permit during this time period.  Failure to achieve compliance at the conclusion of work under an Additional Action Plan may subject Respondent to additional enforcement action.

 

7.             Within 10 days of the completion of each required milestone included in the CP or Additional Action Plan, Respondent shall submit to IDEM a written progress report or notification of completion for each milestone.

 

8.             Beginning on the Effective Date and continuing until the successful completion of implementation of the approved CP and/or Additional Action Plan, Respondent shall, at all times, operate its existing wastewater treatment plant as efficiently and effectively as possible.

 

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

 

Patrick Colcord, Enforcement Case Manager

Office of Water Quality – IGCN 1255

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

10.         Respondent is assessed and agree to pay a civil penalty of Eight Thousand Four Hundred Thirty Five Dollars ($8,435).  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.”

 

11.         In the event the terms and conditions of the following paragraphs are violated, IDEM may assess and Respondent shall pay the corresponding stipulated penalty:

 

Paragraph

Violation

Stipulated Penalty

3, 5

Failure to submit or modify the CP within the required time period.

$500 per week late, or part thereof.

4, 6

For violations of terms and conditions of the Permit during the six (6) month Compliance Demonstration period.

$500 per violation

4, 6

Failure to submit or modify the Additional Action Plan, if required, within the given time period.

$250 per week late, or part thereof.

6

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

$500 per week late, or part thereof.

7

Failure to submit to IDEM a written report of progress or completion for each milestone date included in the CP or Additional Action Plan within 10 days of completion of the requirements of each milestone.

$250 per violation

8

Failure to operate the WWTP as efficiently and effectively as possible.

$250 per violation.

 

12.         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.

 

13.         Civil and stipulated penalties are payable by check to the “Environmental Management Special Fund.”  Checks shall include the Case Number 2018-24999-W of this action and shall be mailed to:

 

Office of Legal Counsel

Indiana Department of Environmental Management

IGCN, Room N1307

100 North Senate Avenue

Indianapolis, IN 46204

 

14.         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.

 

15.         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.  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.

 

16.         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.

 

17.         Respondent shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights are transferred.  Respondent shall ensure that all contractors, firms and other persons performing work under this Agreed Order comply with the terms of this Agreed Order.

 

18.         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 permit or any applicable Federal or State law or regulation.

 

19.         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.

 

20.         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.

 

21.         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 Respondent may incur as a result of such communications with EPA or any other agency or entity.

 

22.         This Agreed Order shall remain in effect until Respondent has complied with all terms and conditions of this Agreed Order and IDEM issues a Resolution of Case (close out) letter to Respondent.

 

REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.

 

TECHNICAL RECOMMENDATION:

RESPONDENT:

Department of Environmental Management

City of Scottsburg

 

By:__________________________

By:________________________

Samantha K. Groce, Chief

 

Water Enforcement Section

 

Surface Water, Operations &

Printed:_____________________

Enforcement Branch

 

Office of Water Quality

Title:_______________________

 

 

Date:________________________

Date:_______________________

 

 

COUNSEL FOR RESPONDENT:

 

 

 

By:________________________

 

 

 

Date:______________________

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS ___________ DAY OF ________________, 20___.

 

 

For The Commissioner:

 

 

Signed on September 18, 2019

 

Martha Clark Mettler

 

Assistant Commissioner

 

Office of Water Quality