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. 2000-9270-W
)
TOWN OF SELLERSBURG, )
)
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.
I. FINDINGS OF FACT
1. The 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.
2. The Respondent is the Town of Sellersburg ("Respondent"), which owns a municipal wastewater treatment plant (WWTP) located at 701 Bean Road in Sellersburg, Clark County, Indiana. The WWTP is authorized to operate and discharge wastewater to Silver Creek under NPDES Permit Number IN0020419.
3. The Indiana Department of Environmental Management ("IDEM") has jurisdiction over the parties and subject matter of this action.
4. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation (ANOV@) via Certified Mail to:
Mr. James LeMasters, President Mr. Jack Danks, Vice President
Sellersburg Town Council EMC of Indiana, L.L.C.
Town Hall 5334 Vogel Road
316 East Utica Evansville, Indiana 47715
Sellersburg, Indiana 47172-1403
CT Corp, Registered Agent for EMC of Indiana, L.L.C.
One North Capitol Avenue
Indianapolis, IN 46204
5. Case Number 2000-9566-W against EMC of Indiana, L.L.C., which operates the WWTP owned by the Respondent, was dismissed.
6. A records review, on February 15, 2000, was conducted by a representative of IDEM=s Office of Water Management ("OWM"). The following violations were in existence or observed at the time of this records review:
A. Pursuant to 327 IAC 5-2-8, the Respondent’s NPDES permit requires the Respondent to do the following:
1. Comply with all terms and conditions of the permit.
2. Take all reasonable steps to minimize or correct any adverse impact on the environment resulting from noncompliance with the permit.
3. Allow the commissioner, or an authorized representative, to enter the premises and have access to records, inspect the premises or collect samples, at reasonable times and upon presentation of appropriate credentials.
4. At all times maintain in good working order and efficiently operate all facilities and systems (and related appurtenances) for collection and treatment which are necessary for achieving compliance with the terms and conditions of the permit.
5. Comply with the monitoring, recording, and reporting requirements established in 327 IAC 5-2-13, 327 IAC 5-2-14, and 327 IAC 5-2-15.
Failure to comply with any of these requirements, pursuant to 327 IAC 5-2-8, constitutes a violation of the Clean Water Act (CWA) and the permit.
The Respondent failed to comply with the requirements of its NPDES permit for the Town of Sellersburg’s WWTP by failing to prevent discharges, as set forth in Attachment A of the permit, from Outfall 003 (Camp Chelan Lift Station) on June 2 and December 10, 1999, and January 3, 2000; and from Outfall 004 (High School Lift Station) on January 3, 2000; pursuant to 327 IAC 5-2-8, in violation of the NPDES Permit.
B. Pursuant to 327 IAC 5-2-2, any discharge of pollutants into 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.
The Respondent failed to prevent point source discharges from nonpermitted outfall points in the Town of Sellersburg=s collection system on January 22, February 1, February 7, March 9, June 2, and December 10, 1999; and January 3 and February 14, 2000; in violation of 327 IAC 5-2-2.
7. On June 2, 1999, IDEM issued to the Respondent a Warning of Noncompliance (WONC) regarding numerous overflow events that occurred from the beginning of 1997 through the date of the WONC=s issuance.
8. On June 21, 1999, IDEM received from Environmental Management Corporation a letter responding to IDEM=s June 2, 1999, WONC. The letter outlined the Respondent’s efforts to address the overflow problems.
9. On or around March 21, 2000, IDEM received from Jacobi, Toombs and Lanz, Inc., consulting engineers for the Respondent, a letter that outlined the Respondent’s recent efforts to address the overflow problems.
10. 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 her delegate, and has been received by the Respondent. This Agreed Order shall have no force or effect until the Effective Date.
2. Within 60 days of the Effective Date of this Agreed Order, the Respondent shall submit a Compliance Plan (CP) for the elimination of all overflow points within the Town of Sellersburg=s collection system. This CP shall include a schedule of any necessary milestone dates for its completion and implementation.
3. The CP is subject to the approval of IDEM. If the plan is deemed inadequate by IDEM, a revised CP shall be submitted to IDEM=s Office of Enforcement within 30 days of receipt of notice from IDEM of the inadequacies thereof. If, after submission of the revised document, IDEM still finds the document is inadequate, then IDEM may require further modification of the CP as necessary to meet IDEM=s requirements. If further modification does not meet IDEM=s approval, IDEM will suggest appropriate modification to be undertaken by the Respondent. If such modification is not undertaken by the Respondent, or an alternative plan submitted by the Respondent is not approved by IDEM, the Respondent will be subject to stipulated penalties.
4. The Respondent, upon receipt of written notification from IDEM, shall immediately implement the approved CP. Any necessary milestone dates for the completion and implementation of the approved CP shall be incorporated into the Agreed Order and shall be deemed an enforceable part thereof.
5. AForce Majeure@, for purposes of this Agreed Order, is defined as any event arising from causes totally beyond the control and without fault of the Respondent that delays or prevents the performance of any obligation under this Agreed Order despite the Respondent’s best efforts to fulfill the obligation. The requirement that the 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. AForce Majeure@ does not include changed business or economic conditions, financial inability to complete the work required by this Agreed Order, or increases in costs to perform the work.
The 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 the Respondent contends is a force majeure. Such notification shall describe the anticipated length of the delay, the cause or causes of the delay, the measures taken or to be taken by the Respondent to minimize the delay, and the timetable by which these measures will be implemented. The 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. The 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.
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.
6. In consideration of the Respondent’s efforts to address the overflow problems prior to the issuance of the NOV, the monies expended on these efforts, and the Respondent’s cooperation in keeping IDEM informed of these efforts, no civil penalty is being assessed at this time.
7. In the event the following terms and conditions are violated, the Complainant may assess and the Respondent shall pay a stipulated penalty in the following amounts:
Violation
PenaltyParagraph 2 $500 per each day past the 60-day deadline that the Respondent fails to submit the bypass elimination CP.
Paragraph 3 $500 per each day past the 30-day or subsequently set deadline that the Respondent fails to submit any required revision to the CP.
$5000 for the Respondent’s failure to either adequately modify the CP or submit an approvable alternative plan.
Paragraph 4 $2500 per each milestone date incorporated into the Agreed Order through the approval of the CP that the Respondent fails to meet.
8. Stipulated penalties shall be due and payable within thirty (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 Indiana law, including but not limited to civil penalties pursuant to IC 13-30-4.
9. 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
Indiana Department of Environmental Management
100 N. Senate Avenue
P. O. Box 7060
Indianapolis, IN 46207-7060
10. This Agreed Order shall apply to and be binding upon the Respondent, its officers, directors, principals, agents, successors, subsidiaries, 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.
11. 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.
12. 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.
13. This Agreed Order shall remain in effect until IDEM issues a Resolution of Cause letter to the Respondent.
TECHNICAL RECOMMENDATION: RESPONDENT:
By: By:
Mark Stanifer, Section Chief
Office of Enforcement Printed:
Department of Environmental Management
Title:
Date: Date:
COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:
By: By:
Office of Legal Counsel
Department of Environmental Management
Date: Date:
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS DAY OF , 2000.
FOR THE COMMISSIONER:
Original signed on December 14, 2000
Felicia A. Robinson
Assistant Commissioner
Office of Enforcement