STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT

) SS: OF ENVIRONMENTAL MANAGEMENT

COUNTY OF MARION )

)

COMMISSIONER OF THE DEPARTMENT )

OF ENVIRONMENTAL MANAGEMENT, )

)

Complainant, )

)

v. ) Case No. 2000-9255-W

)

THE CITY OF BATESVILLE, )

BATESVILLE WASTEWATER UTILITY, )

)

Respondent. )

AGREED ORDER

The Complainant and the Respondent desire to settle and compromise this action without hearing or adjudication of any issue of fact or law, and consent to the entry of the following Findings of Fact and Order. Pursuant to IC 13-30-3-3, nothing herein constitutes an admission by the Respondent of any violation. On this basis, the parties consent to the following:

I. FINDINGS OF FACT

• Complainant is the Commissioner ("Complainant") of the Indiana Department of Environmental Management, a department of the State of Indiana created by IC 13-13-1-1.



• Respondent is the City of Batesville, Batesville Wastewater Utility, ("Respondent"), which owns and operates the wastewater treatment plant (WWTP) and the 100% sanitary sewer system, located at 25019 Underpass Road, and throughout Batesville, in Franklin and Ripley Counties, and which is authorized to discharge to Little Laughry Creek, by National Pollutant Discharge Elimination System (NPDES) Permit No. IN0039268.

• The Indiana Department of Environmental Management ("IDEM") has jurisdiction over the parties and the subject matter of this action.



• Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation via Certified Mail to:

The Honorable William Abplanalp, Mayor

The City of Batesville,

Batesville Wastewater Utility

132 South Main Street

Batesville, Indiana 47006

• Record reviews, on February 9, 2000 and July 27, 2000, were conducted by representatives of IDEM's Office of Water Management. The following violations were observed at the time of these records' reviews:



• Pursuant to 327 IAC 4-1-3, whenever, in the determination of the commissioner, a semipublic facility or publically owned treatment works (POTW) has reached or is approaching 90% of its maximum hydraulic or organic design capacity, the commissioner shall notify the semipublic facility or POTW that it may be necessary, because of such condition, to impose a sewer connection ban if action is not taken by the semipublic facility or POTW to accommodate additional flow or loading.

On February 7, 1995, pursuant to 327 IAC 4-1-3, Batesville was issued a sewer ban early warning notification. A record's review indicated that Batesville's WWTP had reached 93% of its design capacity. The notification explained that if the hydraulic overloading of the facility was not corrected, a sewer connection ban may be imposed. At that time Batesville had failed to correct the inflow/infiltration which caused or contributed to cause the hydraulic overload, in violation of its NPDES permit.

• Pursuant to 327 IAC 4-1-4, imposition of sewer connection bans, whenever, in the determination of the commissioner, hydraulic or organic overloading of a semipublic facility or POTW exists or is impending and the introduction into the semipublic facility or POTW of additional wastewater from new or existing sources is likely to result in the discharge or bypassing of insufficiently treated sewage, the commissioner may impose a ban on further sewer connections to the semipublic facility or POTW. Such sewer connection bans shall prohibit the connection or introduction of additional wastewater or sewage into the semipublic facility or POTW, except as otherwise provided under this article.

Pursuant to 327 IAC 4-1-5, notification of imposition of a sewer connection ban:

• Whenever the commissioner has determined to impose a ban on further sewer connections to a POTW, the commissioner shall notify the principal executive officer, the ranking elected official, or the authorized agent or representative of the POTW of such determination by certified mail, return receipt requested.
• Whenever the commissioner has determined to impose a ban on further sewer connections to a semipublic facility, the commissioner shall notify the owner, chief executive officer, or authorized agent or representative of the semipublic facility of such determination by certified mail, return receipt requested.

On January 17, 1996, an imposition of sewer connection ban notification was issued to the Respondent indicating that the WWTP was hydraulically overloaded. From the period of November 1, 1994 to October 31, 1995, the Respondent's WWTP was averaging 110% of its hydraulic capacity of 1.23 million gallons per day (mgd). During this period, this flow exceeded its hydraulic design capacity by as much as 2.13 mgd, or 173%. During the same period of November 1, 1994 to October 31, 1995, the Respondent reported, to IDEM, eighty-one (81) bypassing of treatment events, in violation of its NPDES permit.

• Pursuant to 327 IAC 4-1-6, grounds and procedures for obtaining waivers of sewer connection bans, requests for connections from new or existing sources to a semipublic facility or POTW where a sewer connection ban is in effect may be approved if it is determined by the commissioner that any of certain conditions exist.

Pursuant to 327 IAC 4-1-8, the following shall be excluded from the requirements of sewer connection bans:

• Single-family dwellings erected on vacant lots served by an existing sanitary sewer.
• Projects that possess a valid construction permit issued under 327 IAC 3-2 prior to the imposition of a sewer connection ban.

On February 9, 2000, IDEM requested verification of new sewer connections occurring since the imposition of the sewer connection ban for commercial establishments which include the following construction projects: FCN Bank, Guys and Gals Quarters Hair Salon, Lynch's Car Wash, Maxwell Construction Office Building, Medical Arts Building, Precision Hair Designs Hair Salon, and Prestige Portraits. IDEM has no record of the Respondent requesting sewer connection ban waivers for the above construction projects, in violation of its NPDES permit and provisions of 327 IAC 4-1-4 and 327 IAC 4-1-6.

• Pursuant to 327 IAC 4-1-11(a), whenever necessary to carry out the provisions of this article, any person who is or may be reasonably expected to be subject to such regulatory provisions shall:
• establish and maintain records;
• make reports;
• install, use, and maintain monitoring equipment or methods;
• sample effluents, or other material; and
• provide other information;

at the locations, at the times, and in the manner the commissioner may reasonably prescribe.

On February 29, 2000, IDEM received a response to its February 9, 2000, information request letter. The Respondent verified that the construction and connection to the sewer system had occurred without notifying IDEM. The Respondent failed to meet the provisions of the sewer connection ban exclusion, failed to notify IDEM of these construction projects, and failed to obtain a sewer connection ban waiver for the above construction projects, in violation of

327 IAC 4-1-6, 327 IAC 4-1-8 and 327 IAC 4-1-11(a). The Respondent contends that it mistakenly believed that the sewer connection ban waivers were not necessary. The Respondent also contends that it believed that the waivers were necessary only when IDEM required a construction permit.

On July 12, 2000, representatives of IDEM met with representatives of the City of Batesville to discuss the sewer connection ban and the Respondent's continued violations of the ban. On July 27, 2000, the Respondent submitted a follow-up letter to the July 12, 2000 meeting. The Respondent verified that the construction projects failed to meet the provisions of the sewer connection ban exclusion. The Respondent allowed the connection of commercial buildings to its 100% sanitary sewer system without obtaining sewer connection ban waivers from IDEM. The Respondent failed to timely notify IDEM of these construction projects and failed to obtain a sewer connection ban waiver for the following construction projects prior to commencing construction, in violation of its NPDES permit and provisions of 327 IAC 4-1-4, 327 IAC 4-1-6, 327 IAC 4-1-8 and 327 IAC 4-1-11(a):

PROJECT DATE BUILDING DATE CONSTRUCTION

NAME/LOCATION PERMIT ISSUED PROJECT COMPLETED

• Since October 31, 2000, when IDEM issued its Notice of Violation, IDEM and the Respondent have discussed the following additional construction projects which also are addressed by this Agreed Order:

PROJECT DATE BUILDING DATE CONSTRUCTION

NAME/LOCATION PERMIT ISSUED PROJECT COMPLETED

• On December 21, 2000, The Respondent submitted to IDEM a request for sewer ban termination.



• On January 10, 2001, IDEM sent a letter to the Respondent denying the request for sewer ban termination. This denial is based on the fact that Batesville has rated the capacity of the WWTP, as determined in the City's approved Sewer Works Project Facilities Plan, as 1.6 million gallons per day (mgd), IDEM's records indicate that the WWTP's actual design flow is 1.23 mgd. IDEM's records show that bypassing events have consistently occurred at flows less than 1.6mgd. It was also determined that currently no additional "waiver capacity" is available for Batesville because the WWTP is operating at 91% capacity and the percent capacity does not take into consideration the undetermined amount of raw wastewater being bypassed from the WWTP and discharged into the environment.



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

II. ORDER

• This Agreed Order shall be effective ("Effective Date") when it is approved by the Complainant or her delegate, and has been received by the Respondent. This Agreed Order shall have no force or effect until the Effective Date.



• Immediately, upon the Effective Date of this Order, the Respondent shall comply with all terms and conditions of the sewer connection ban issued on January 17, 1996. The Respondent shall not construct or allow others to construct any connections to its sanitary sewer system, unless the project is excluded from the requirements of sewer connection bans under 327 IAC 4-1-8, or unless the Respondent first obtains a sewer connection ban waiver from IDEM pursuant to 327 IAC 4-1-6, or until IDEM issues a notice of termination of the sewer ban.





• The Respondent shall submit requests for waivers of the sewer connection ban for all future projects covered by 327 IAC 4-1-6 that it intends to connect to the sewer until IDEM terminates the sewer connection ban. All requests shall contain, at a minimum, the projected flow and pollutant loadings from the proposed connection(s), and the projected impact upon the WWTP. All waiver requests will be approved or denied by IDEM.



• All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:

Aletha Lenahan, Enforcement Case Manager

Office of Enforcement

Indiana Department of Environmental Management

100 N. Senate Avenue

P. O. Box 6015

Indianapolis, IN 46206-6015

• Respondent is assessed a civil penalty of Twenty-One Thousand Dollars ($21,000). Said penalty amount shall be due and payable to the Environmental Management Special Fund within 30 days of the Effective Date of this Agreed Order.



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

VIOLATION PENALTY

Failure to comply with Order paragraph 2 $500 per connection for violation of the sewer connection ban.

Failure to comply with Order paragraph 3 $200 per week for failure to submit all requests for waivers of a sewer connection ban.

• Stipulated penalties shall be due and payable within thirty (30) days after Respondent receives written notice that the Complainant has determined a stipulated penalty is due. Assessment and payment of stipulated penalties shall not preclude the Complainant from seeking any additional relief against the Respondent for violation of 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 Respondent's violation of this Agreed Order or Indiana law, including, but not limited to, civil penalties pursuant to IC 13-30-4.



• Civil and stipulated penalties are payable by check to the Environmental Management Special Fund. Checks shall include the Cause Number of this action and shall be mailed to:

Cashier

IDEM

100 N. Senate Avenue

P. O. Box 7060

Indianapolis, IN 46207-7060

• In the event that the civil penalty required by Order paragraph 5, is not paid within thirty (30) days of the Effective Date of this Agreed Order, 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.



• 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.



• 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.



• The 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.



• This Agreed Order shall remain in effect until the Respondent has complied with all terms and conditions outlined in this Agreed Order, as well as Agreed Order, Cause No. B-1677, including but not limited to the completion of the new WWTP, and successful completion of the performance period, as well as the completion of the sewer system rehabilitation.

TECHNICAL RECOMMENDATION: RESPONDENT:

Department of Environmental Management City of Batesville,

The Honorable William Abplanalp, Mayor

By: _________________________ By: ________________________________

Mark W. Stanifer

Chief, Water Enforcement Printed: The Honorable William Abplanalp

Office of Enforcement

Title: Mayor, City of Batesville

Date: ________________________ Date: ______________________________

COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:

Department of Environmental Management

By: _________________________ By: ________________________________

Sierra L. Cutts

Attorney, Office of Legal Counsel Printed: Terri A, Czajka

Department of Environmental Management

Title: Attorney, Ice Miller

Legal and Business Advisors

Date: _______________________ Date: ______________________________

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS DAY OF , 2001.

For the Commissioner:

Signed 3/23/01

___________________________________

Felicia A. Robinson

Assistant Commissioner

Office of Enforcement