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. 2000-9824-W
)
TOWN OF FORT BRANCH, )
)
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. Complainant is the Commissioner (AComplainant@) of the Indiana Department of Environmental Management, a department of the State of Indiana created by IC 13-13-1-1.
2. Respondent is the Town of Fort Branch (ARespondent@), which operates the Town of Fort Branch wastewater treatment plant ("WWTP") located near the intersection of Coal Mine Road and C.R. 85 W., in Fort Branch, Gibson County, Indiana, and discharges wastewater, as authorized by NPDES Permit No. IN 0022896 ("the Permit") to receiving waters named the West Fork of Pigeon Creek in accordance with effluent limitations, monitoring requirements, and other conditions set forth in the Permit.
3. The Respondent's WWTP is served by 100% separate sanitary sewers by design. Under Part I.A.1 of the Permit, the WWTP is authorized to discharge from Outfall No. 001.
4. The Indiana Department of Environmental Management (AIDEM@) has jurisdiction over the parties and the subject matter of this action.
5. Pursuant to IC 13-30-3-3, on December 19, 2000, IDEM issued a Notice of Violation via Certified Mail to:
Donald J. Gries, President
Fort Branch Town Council
304 W. Walnut St.
P.O. Box 40
Fort Branch, IN 47648
6. Pursuant to IC 13-30-2-1, no person may 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 or into any publicly owned treatment works in any form which causes or would cause pollution that violates rules, standards, or discharge or emission requirements adopted by the appropriate board under this title.
Pursuant to IC 13-18-4-5, it is unlawful for any person to throw, run, drain, or otherwise dispose into any of the streams or waters of Indiana; or cause, permit, or suffer to be thrown, run, drained, allowed to seep, or otherwise disposed into any waters; any organic or inorganic matter that causes or contributes to a polluted condition of any waters, as determined by a rule of the board adopted under sections 1 and 3 of this chapter.
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.
Pursuant to 327 IAC 5-2-8(1), the Respondent's WWTP NPDES Permit No. IN 0022896 (the Permit), under Part II.A.1, requires the Respondent to comply with all terms and conditions of the Permit. Any permit noncompliance, pursuant to 327 IAC 5-2-8, constitutes a violation of the Clean Water Act (CWA) and the Environmental Management Act (EMA) and the Permit.
Part II.B.2.g. of the Permit states that the WWTP has two Sanitary Sewer Overflow (SSO) points: Outfall No. 002 located at a manhole approximately 100 ft. from Gibson Southern High School Road, and Outfall No. 003 located at South Red Bank Road - a quarter mile north of the WWTP.
Pursuant to 327 IAC 5-2-8(11)(D)(i), under Part II.B.2.b of the Permit, bypasses are prohibited, and the Commissioner may take enforcement action against a permittee for bypass unless:
(1) Bypass was unavoidable to prevent loss of life, personal injury, or severe property damage;
(2) There were no feasible alternatives to the bypass, such as the use of auxiliary treatment facilities, retention of untreated wastes, or maintenance during normal periods of equipment down time. This condition is not satisfied if adequate back-up equipment should have been installed in the exercise of reasonable engineering judgment to prevent a bypass that occurred during normal periods of equipment down time or preventive maintenance; and
(3) The permittee submitted notices as required under Part II.B.2.d; or
(4) The condition under Part II.B.2.f is met. Part II.B.2.f states, "The permittee may allow any bypass to occur that does not cause a violation of the effluent limitations in the permit, but only if it also is for essential maintenance to assure efficient operation. This provision will be strictly construed. These bypasses are not subject to the provisions of Part II.B.2.c and d of this permit."
From March 9, 1999 through September 25, 2000, unanticipated bypasses at the Respondent's WWTP have been reported to IDEM to have occurred on the following dates, followed by the amount bypassed and the reported reason for the bypass:
Date(s) of bypass
Amount of flow bypassed Reason for bypassMarch 9, 1999 943,900 gallons 1.6 inches of rainfall
March 23, 1999 351,600 gallons 1.4 inches of rainfall
April 5-6, 1999 490,600 gallons 0.9 inches of rainfall
April 28-29, 1999 382,800 gallons 2.7 inches of rainfall
June 1-2, 1999 76,600 gallons 1.2 inches of rainfall
June 26-27, 1999 174,700 gallons 1.9 inches of rainfall
July 1-2, 1999 1,270,700 gallons 4.5 inches of rainfall
December 13-14, 1999 49,400 gallons 2.4 inches of rainfall
January 2-3, 2000 2,000,700 gallons 3.9 inches of rainfall
February 13, 2000 806,700 gallons 2.5 inches of rainfall
February 18-19, 2000 1,799,200 gallons 2.9 inches of rainfall
February 23-24, 2000 369,800 gallons 1.1 inches of rainfall
February 26-27, 2000 1,665,200 gallons 1.5 inches of rainfall
March 16, 2000 amount not reported 1.8 inches of rainfall
March 19-20, 2000 737,300 gallons 1.2 inches of rainfall
June 16-18, 2000 1,406,735 gallons 4.3 inches of rainfall
June 24, 2000 500,200 gallons 1.8 inches of rainfall
July 31, 2000 221,900 gallons 1.6 inches of rainfall
August 6-7, 2000 826,900 gallons 2.0 inches of rainfall
August 23-24, 2000 1,069,400 gallons 3.0 inches of rainfall
August 26-27, 2000 780,600 gallons 1.2 inches of rainfall
September 25, 2000 132,500 gallons 1.3 inches of rainfall
The above noted bypasses were reported as required by Part II.B.2.d. of the Permit. However, the bypasses did not occur under provisions of Part II.B.2.b(1), (2), or (4) of the Permit. Therefore, the reported bypasses were prohibited and in violation of IC 13-30-2-1, IC 13-18-4-5, 327 IAC 5-2-2, Part II.B.2.b of the Permit, the CWA, and the EMA.
7. On February 6, 2001, the Respondent submitted a letter in response to the Notice of Violation that outlined the actions it has taken to attain compliance with the Permit. The Respondent noted, in substance, that the Town completed construction of a new wastewater treatment plant and sewer rehabilitation project in 1991. The new treatment plant was designed to effectively treat the Town's sewage for the next 20 years, without bypassing.
Shortly after the treatment plant was completed, it was apparent that peak flows, on days of significant rainfall, were far in excess of the peak capacity of the new treatment plant. From 1992 through 1994, the Respondent performed additional sewer system evaluation and rehabilitation to reduce the peak flows to a level the plant could handle. However, when the work was completed in 1994, the problem of high wet weather flows showed very little improvement. The Respondent and its engineer concluded that it was necessary to construct an equalization basin to temporarily store peak wet weather flows for later treatment.
The Respondent was concerned that the equalization basin would not solve their problem and a second engineer was retained to review the WWTP records. Upon review the second engineer concluded that a much larger equalization basin than originally considered would be required. However, the engineer could not determine how large the equalization basin would need to be without an accurate record of the volume of sewage bypassing the treatment plant.
In early 1996, the Respondent completed construction of a large pump and recording flow meter to enable it to accurately measure all bypasses at the treatment plant. After monitoring the amount of flow bypassed during 1996, in 1997, the Respondent's engineer concluded that an equalization basin was not an effective solution to their problem due to the fact that the total annual flows to the treatment plant were more than the plant can treat normally. The engineer determined that the only feasible solution would be to upgrade the hydraulic capacity of the treatment plant to handle the peak flows.
The Respondent developed a preliminary engineering and a cost estimate of the treatment plant improvements, and met with IDEM's staff in late 1997 to review this proposal. The Respondent stated that IDEM's staff concurred with the proposal and in 1998 the Respondent began efforts to acquire the additional land required for the treatment plant upgrade. The additional land was acquired in 1999. The land acquisition took a substantial period of time because the landowner was not a willing seller. During this same period the Respondent discovered a wet weather sanitary sewer overflow and developed a solution for this problem.
In late 1999, the Respondent began design work for the treatment plant improvements and the new interceptor to eliminate the sanitary sewer overflows. In 1999, the Respondent also relined a section of sewer on the north side of the Town.
During 2000, the Respondent met with IDEM's staff and explored financing possibilities for the project. After checking with the U.S. EPA to determine if the Respondent was eligible for a loan through IDEM's State Revolving Fund, in September of 2000, the Respondent was advised that it was eligible for an SRF loan. At that point the Respondent began working on an SRF loan application and the required SRF Preliminary Engineering Report. On December 15, 2000, the Respondent applied for an SRF loan for the project. The Respondent also applied for a Build Indiana Fund Grant to supplement the SRF loan financing. The Respondent also noted that it had a rate study of the sewer system, and increased the sewer rates for its customers to begin accumulating funds for the system upgrade.
The Respondent attached in its February 6, 2001 submittal a Wastewater Treatment Plant Upgrade plan, which included a description of the project, and a schedule for completing the project tasks.
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 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. At all times, the Respondent shall operate the WWTP as efficiently as possible and in a manner which will minimize upsets and discharges of excessive pollutants as required by the Permit. The Respondent shall assure that all bypasses and overflows that occur are minimized, monitored, and reported to IDEM as required by the Permit.
3. On February 6, 2001, the Respondent submitted a Wastewater Treatment Plant Upgrade plan (see Attachment A) which includes the project tasks the Respondent will complete to address the deficiencies and violations noted herein. The Wastewater Treatment Plant Upgrade plan, including the project tasks to be completed and the time frames for their completion, is incorporated into the Agreed Order and deemed an enforceable part thereof.
4. Within ten (10) days of completion of each project task contained in the Wastewater Treatment Plant Upgrade plan, the Respondent will notify IDEM in writing of completion of the project task. The written notification will include a description of the project task completed, and the date completed.
5. Beginning from the date that the Respondent completes all the project tasks in the Wastewater Treatment Plant Upgrade plan, the Respondent shall be under a Performance Period. During the Performance Period, the Respondent shall assure that no unpermitted bypasses or overflows occur.
The Respondent will be liable for stipulated penalties for failure to comply with the requirements of the Performance Period until it demonstrates six (6) consecutive months where no unpermitted bypasses or overflows occur, or one (1) year, whichever comes first, and IDEM issues a letter of completion of the Performance Period. Should the Respondent fail to demonstrate six (6) consecutive months where no unpermitted bypasses or overflows occur within one (1) year, then IDEM, at its discretion, may initiate an additional enforcement action for continuing violations.
6. All submittals required by this Agreed Order, unless notified otherwise in
writing, shall be sent to:
Terry Ressler, Enforcement Case Manager
Office of Enforcement
Indiana Department of Environmental Management
100 N. Senate Avenue
P. O. Box 6015
Indianapolis, IN 46206-6015
7. Respondent is assessed a civil penalty of Four Thousand Three Hundred and Seventy Five Dollars ($4,375). 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.
8. 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
Paragraph 2 $500 per week for failure to operate the WWTP as efficiently as possible and in a manner will minimize upsets and discharges of excessive pollutants as required by the Permit, and
$500 per incident for failure to assure that all bypasses and overflows that occur are minimized, monitored, and reported to IDEM as required by the Permit,
Paragraph 3 $500 per week for failure to timely comply with each project task in the Wastewater Treatment Plant Upgrade plan,
Paragraph 4 $250 per week for failure to timely submit written notification of completion of each project task contained in the Wastewater Treatment Plant Upgrade plan, and
Paragraph 5 $500 per unpermitted bypass or overflow during the Performance Period.
9. 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.
10. 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
11. In the event that the civil penalty required by Order paragraph 7 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.
12. 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.
13. 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.
14. 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.
15. This Agreed Order shall remain in effect until the Respondent has complied with all terms and conditions of this Agreed Order and until IDEM issues a Resolution of Case letter to the Respondent.
TECHNICAL RECOMMENDATION: RESPONDENT:
Department of Environmental Management Town of Fort Branch
By: _________________________ By: _________________________
Mark W. Stanifer Printed: ______________________
Chief, Water Enforcement Section
Office of Enforcement Title: ________________________
Date: ________________________ Date: ________________________
COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:
Department of Environmental Management
By: _________________________ By: ________________________
Sierra L. Cutts
Office of Legal Counsel
Department of Environmental Management
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