STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT OF
COMMISSIONER OF THE DEPARTMENT )
) SS: ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
)
v. ) CAUSE NO. B-1961
)
)
TOWN OF BORDEN (NEW PROVIDENCE), )
)
Respondent. )
The Complainant and the Respondent(s) 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.
1. Complainant is the Commissioner (hereinafter referred to as "Complainant") 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 Borden (New Providence), which owns and operates a
municipal wastewater treatment plant (POTW) , located in Borden (New Providence),
Clark County, Indiana.
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 on May 19, 1997 via
Certified Mail to:
Ms. Myra Powell, President
Borden Town Council
111 West Main Street
Borden, Indiana 47106
The Town of Borden (New Providence) was authorized by the National Pollutant
Discharge Elimination System (NPDES) Permit No. IN 0043621 (the Permit) to
discharge from its POTW to receiving waters named the Muddy Fork branch of Silver
Creek in accordance with effluent limitations, monitoring requirements, and other
conditions set forth in Parts I and II and Attachment A thereof.
IC 13-30-2-1 requires, in substance, that 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 or into any publicly owned treatment works in any form which causes or
would cause pollution which violates rules, standards, or discharge of emission
requirements adopted by the appropriate board pursuant to this article.
327 IAC 5-2-8 states, in substance, that the following conditions apply to all NPDES
permits and shall be incorporated into the permits either expressly or by reference:
a. A permittee shall comply with all terms and conditions of its NPDES permit; any
permittee non-compliance constitutes a violation of the Clean Water Act (CWA)
and the Environmental Management Act (EMA) and is grounds for enforcement
action;
b. The permittee shall take all reasonable steps to minimize or correct any adverse
impact on the environment resulting from noncompliance with the permit;
c. 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 which are necessary for achieving compliance with the terms and
conditions of the permit.
327 IAC 5-2-13(a)(2) states, in part, to assure compliance with permit terms and
conditions, all permittees shall monitor, as required in the permit, the volume of
wastewater flow at monitoring points specified in the permit, including the final effluent
flow from each point source.
Part II. A.1. of the Permit states, in part, "All discharges authorized herein shall be
consistent with the terms and conditions of this permit. The discharge of any pollutant
more frequently than, or at a level in excess of, that identified and authorized by this
permit shall constitute a violation of the terms and conditions of this permit. Such a
violation may result in the imposition of civil and/or criminal penalties as provided for in
Chapter 13 of the Environmental Management Act."
A record review for January, 1991 through December, 1993 indicates that the Town of
Borden exceeded permit final effluent limitations in violation of 327 IAC 5-2-8, IC 13-
30-2-1 and the Permit for:
a.) Total Biochemical Oxygen Demand (TBOD5) for the months of :
1991 January, December
1992 January
1993 January, February, March, April, May, August, September,
October, November, December
b.) Total Suspended Solids (TSS) for the months of:
1991 December
1993 May, August, September, October, November, December
c.) Ammonia Nitrogen for the months of:
1991 May
1992 February, March, May, June
1993 April, May, June, September, October, November
In addition, Part II.A.5. of the Permit states, in part, all waste collection, control,
treatment, and disposal facilities shall be operated in a manner consistent with the
following:
a. at all times, all facilities shall be operated as efficiently as possible and in a
manner which will minimize upsets and discharges of excessive pollutants.
b. the permittee shall provide an adequate operating staff which is duly qualified to
carry out the operation, maintenance, and testing functions required to insure
compliance with the conditions of this permit.
The Town of Borden has failed to correct Operation and Maintenance (O&M)
deficiencies that were noted in IDEM inspection reports on July 27, 1993, June 7, 1994,
June 12, 1994, September 13, 1994, October 13, 1994, April 27, 1995, June 13, 1995,
and January 26, 1996 as improper sampling and poorly maintained equipment/processes.
This is in violation of 327 IAC 5-2-8 and Part II.A.5. of the Permit.
327 IAC 5-3-2(a)(2) states that persons currently discharging pollutants under an existing
NPDES permit shall submit a new application at least one hundred eighty (180) days
prior to the expiration date of the existing permit, unless a later date is allowed by the
commissioner.
NPDES Permit No. IN 0043621 became effective on February 1, 1989 and had an
expiration date of December 31, 1993. On Page 1, the Permit stated; In order to receive
authorization to discharge beyond the date of expiration, the permittee shall submit such
information and forms as are required by the Indiana Department of Environmental
Management no later than 180 days prior to the date of expiration.
Accordingly, from the period extending from January 1, 1994 to the present, the
Respondent has been in violation of one, but not both of the following sets of
regulations:
A. Discharging without an NPDES permit:
IC 13-30-2-1, and 327 IAC 5-2-2, which states that any discharge of pollutants into the
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.
327 IAC 2-1-6(a)(1) states, in substance, that all waters at all times and at all places,
including the mixing zone, shall meet the minimum conditions of being free from
substances, materials, floating debris, oil or scum attributable to municipal, industrial,
agricultural, and other land use practices or other discharges:
a. That will settle to form putrescent or otherwise objectionable deposits;
b. That are in amounts sufficient to be unsightly or deleterious;
c. That produce color, odor or other conditions in such degree as to create a
nuisance;
d. Which are in amounts sufficient to be acutely toxic to, or to otherwise severely
injure or kill aquatic life, other animals, plants, or humans;
e. Which are in concentrations or combinations that will cause or contribute to the
growth of aquatic plants or algae to such degree as to create a nuisance, be
unsightly, or otherwise impair the designated uses.
The IDEM received the application for the renewal of NPDES Permit No. IN 0043621
on August 26, 1996. The Town of New Providence ("Borden") has been operating its
POTW without a valid NPDES permit since December 31, 1993, in violation of 327 IAC
5-2-2, 327 IAC 5-3-2, and the Permit. The requirement to submit an application for
renewal of the NPDES permit was noted during inspections conducted by the IDEM on
September 13, 1994, October 13, 1994, April 27, 1995, and June 13, 1995. In addition, a
Warning of Noncompliance letter was sent on June 26, 1996, which noted that the permit
had expired.
OR
Violations of Permit No. IN 0043621
327 IAC 5-2-8, and the Permit, as noted above. This violation is based on a record
review for January, 1994 through December, 1996, which indicated that the Town of
Borden was in violation of NPDES permit final effluent limitations for:
a.) TBOD5 for the months of :
1994 January, February, December
1995 January, February, March, April, June, August
1996 April, May, June
b.) TSS for the months of:
1994 January, February, May
1995 February, April, June
1996 May, June
c.) Ammonia Nitrogen for the months of:
1994 January, March, April, May, June
1995 January, February, May, June, July, August
1996 March, April, May, June, July, August, September, October
d.) Total Residual Chlorine (TRC) for the months of
1994 October
1995 April, May
1996 April, October
327 IAC 2-4-1 and 327 IAC 2-4-4 state, in substance, that every person that operates a
wastewater treatment plant or discharges wastewater to waters of the state of Indiana
shall submit to the Commissioner monthly reports of operation (MROs) and that all
reports from wastewater discharges must be prepared by a certified operator, and
submitted prior to the 28th day of the following month.
327 IAC 5-2-15 states, in substance, that permittees shall report to the commissioner,
using Discharge Monitoring Reports (DMR), the results of any monitoring reported by
the permit.
Part I.B.3. of NPDES Permit No. IN 0043621 states, in substance, that the permittee
shall submit monitoring reports to the Indiana Department of Environmental
Management containing results obtained during the previous month and shall be
postmarked no later than the 28th day of the month following each completed monitoring
period. These reports shall include, but not necessarily be limited to, the Discharge
Monitoring Report (DMRs) and the Monthly Report of Operation (MROs).
A record review indicates that the DMRs and MROs were submitted late in violation of
327 IAC 5-2-15, 327 IAC 2-4-1, 327 IAC 2-4-4, and the Permit for the following
months:
1994 January, March, April, June, July, September, October, November
1995 January, June, July, August, September, October, November
1996 January, February, March, April, May, June, July, August, September, October,
November
327 IAC 2-1-6, and IC 13-18-4-5, which states that a person may not:
(a) ...dispose into any of the streams or waters of Indiana; or
(b) cause, permit ...or otherwise dispose 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...
During an inspection of the Respondent's wastewater treatment facilities conducted on
December 31, 1996, an IDEM representative observed that the plant was bypassing to the
receiving stream. During the inspection, it was also noted that sewage solids were in the
creek and the creek had a sheen on it. Bypasses have also been noted on inspection
reports on June 12, 1991, and January 26, 1996. The above noted conditions, are in
violation of 327 IAC 2-1-6, 327 IAC 5-2-8, IC 13-30-2-1, and IC 13-18-4-5.
327 IAC 5-2-8(7)(B) states in part, that, the permittee shall allow the commissioner, or
an authorized representative to have access to and copy at reasonable times any records
that must be kept under the terms and conditions of the permit.
IC 13-18-3-9 states that, the department may, through any authorized agent, enter at all
reasonable times in or upon any private or public property for the purpose of inspecting
and investigating conditions relating to the pollution of any water of Indiana. Part II.B.1.
of the Permit also grants this right to the IDEM.
Designated representatives of the IDEM have conducted inspections of the New
Providence POTW and have not been able to gain access to the lift stations, laboratory or
records of the POTW on June 7, 1994, April 27, 1995, June 13, 1995, and January 26,
1996, in violation of 327 IAC 5-2-8, IC 13-18-3-9 and the Permit.
327 IAC 6-2-1 requires, in substance, that a land application permit be required for the
disposal of any industrial, municipal, or semi-public sludge, waste product, and/or
wastewater by application upon or incorporation into the soil except for the exclusions
listed under section (b).
On September 12, 1995, Land Application Permit No. IN LA 000554 was issued to the
Town of Borden, with an effective date of October 1, 1995 and an expiration date of
September 30, 2000. Part IV.A.4. of Permit No. IN LA 000554 requires the permittee to
submit an annual report to the IDEM by January 31 for the preceding year.
On February 15, 1996, a Warning of Noncompliance letter was sent to the Town of
Borden stating that an annual report for the year 1995 as required by Land Application
Permit No. IN LA 000554 had not been received by the IDEM. On May 29, 1996,
IDEM sent a letter to the Town of Borden that notified the Town that the Land
Application Permit No. IN LA 000554 was suspended due to failure to submit an annual
report for 1995 and failure to respond to the Warning of Noncompliance letter dated
February 15, 1996.
NPDES Permit No. IN 0043621 states that the New Providence (Borden) wastewater treatment plant has the capacity to treat 140,000 gallons of wastewater per day. A record
review by the IDEM has determined that in the months between January 1991 and
October 1996, the facility has only operated at or below its design capacity for five (5)
months; all other months showed operation of the plant above its design capacity. These
excessive flow values demonstrate that there are more connections to the sanitary sewer
than the plant was designed for, or that there are unpermitted stormwater connections to
the sanitary sewer, or the sewers are in need of repair and/or replacement. Inspection
reports from September 13, 1994, October 13, 1994, April 27, 1995, June 13, 1995, and
January 26, 1996 identify inflow and infiltration (I/I) as a severe problem that needs to be
addressed. This information further supports the findings of violation of the NPDES
permit, 327 IAC 5-2-8, and 327 IAC 2-1-6(a)(1).
29. On June 18, 1997 a meeting was held between designated representatives of the Town of
Borden and designated representatives of the IDEM. During this meeting the Town of
Borden confirmed that it had only been using one-half of the WWTP for treatment
purposes, the other half had been used for replacing parts on the first half, as those broke
or became inoperable. This practice of not utilizing the full capacity of the WWTP
caused the plant to operate under significant overload conditions.
In recognition of the settlement reached, Respondents waive any right to administrative
and judicial review of this Agreed Order.
1. This Agreed Order shall be effective ("Effective Date") when it is approved by the
Complainant or his delegate, and has been received by the Respondents. This Agreed
Order shall have no force or effect until the Effective Date.
2. Respondent shall submit to the IDEM for its approval a Compliance Plan (CP) that addresses the deficiencies and violations noted herein. The CP is due within thirty (30) days from the Effective Date of this Order. The CP is subject to approval of the IDEM. If the plan is deemed inadequate by the IDEM, a revised plan shall be submitted within fifteen (15) days of receipt of notice from the IDEM of the inadequacies thereof. If after submission of the revised document(s), the IDEM still finds that the document(s) are inadequate, then the IDEM may require further modification of the CP as necessary to meet the IDEM's requirements. If further modification does not meet the IDEM's approval, the IDEM will suggest appropriate modification to be undertaken by Respondent within a specified timeframe. If such modification is not timely undertaken or an alternative plan timely submitted by the Respondent is not approved by the IDEM, the Respondent will be liable for stipulated penalties. Respondent, upon written notification by the IDEM, shall immediately
implement the approved plan, including the dates for completion of the scheduled
items. The approved CP shall be incorporated into the Agreed Order and shall be
deemed an enforceable part thereof. The CP shall include, but not be limited to:
A. An Operations and Maintenance (O & M) Manual for the existing plant
that addresses inspections, scheduled maintenance and operations.
B. A Quality Assurance/Quality Control (QA/QC) Laboratory Manual, that
addresses all sampling and analytical procedures to assure compliance
with the requirements of the NPDES permit.
A plan to return the entire plant to operational status within ninety (90)
days.
D. A plan to ensure that a full-time certified operator is in responsible
charge and direct supervision of the WWTP.
A plan to maximize the efficiency of the existing treatment plant during
the interim period, until a final solution for staying in compliance is
achieved.
F. Actions Respondent will take to assure consistent compliance with
Permit effluent limitation requirements for D.O., TBOD5, TSS, TRC at
Contact Tank, and TRC at final discharge.
G. Actions Respondent will take to correct the excessive hydraulic loading
of the collection system and treatment plant.
Upon approval of the CP and subsequent completion of each of the scheduled work
items contained in the CP, the Respondent shall submit documentation within fifteen
(15) days of the completion of the item to the address in paragraph 4.
3. Upon completion of the CP, the Respondent shall be under a performance period
during which the Respondent shall maintain compliance with the Monthly Average
effluent limitations of its NPDES permit. The performance period will end after IDEM
serves notice that six (6) consecutive months of compliance with all Monthly Average
effluent limitations have been achieved. The performance period may not extend
beyond twelve (12) months after completion of the CP. Should Respondent fail to
demonstrate six (6) consecutive months of compliance with monthly average effluent
limitations within twelve (12) months of completion of the CP, then IDEM may, at its
discretion, initiate an additional enforcement action.
4. All submittals required by this Agreed Order, unless notified otherwise in writing, shall
be sent to:
Christina Sorensen, Water Enforcement Section
Office of Enforcement
Indiana Department of Environmental Management
100 N. Senate Avenue
P.O. Box 7060
Indianapolis, Indiana 46206-7060.
5. Respondents are assessed a Civil Penalty of Twenty-Nine Thousand Nine Hundred
Seventy Dollars ($29,970). Said penalty amount shall be due and payable to the
Environmental Management Special Fund within thirty (30) days of the Effective Date of
this Agreed Order.
6. In the event the following terms and conditions are violated, the Complainant may assess
and the Respondents shall pay a stipulated penalty in the following amounts:
VIOLATION PENALTY
Paragraph 2 Failure to submit compliance plan or
revised compliance plan $1,000 per week late
Failure to implement approved
compliance plan $1,000 per week late
Failure to meet completion dates
specified in approved compliance plan $1,000 per week late
7. Stipulated penalties shall be due and payable within thirty (30) days after Respondents
receive 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 Respondents for violation of the Agreed Order.
In lieu of assessment of the stipulated penalty given above, the Complainant may seek
any other remedies or sanctions available by virtue of Respondents violation of this
Agreed Order, or Indiana law, including but not limited to civil penalties pursuant to IC
13-30-4.
8. Civil and stipulated penalties are payable by check to the Environmental Management
Special Fund. Checks shall include the Cause Number (B-1961) of this action and shall
be mailed to:
Cashier
Indiana Department of Environmental Management
100 N. Senate Avenue
P.O. Box 7060
Indianapolis, Indiana 46206-7060.
9. In the event that the civil penalty required by paragraph 5 is not paid within thirty (30)
days of the Effective Date of this Agreed Order, Respondents 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.
"Force Majeure", for purposes of this Agreed Order, is defined as any event arising from
causes beyond the control of the 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 the Respondent exercise "best efforts to fulfill the
obligation" includes using 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 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 within seven (7) calendar days and by
writing no later than fourteen (14) days after 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 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 within
a reasonable time by IDEM and shall not be unreasonably withheld. Said decision shall
be communicated to the Respondent in writing.
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
attributable to the event constituting the force majeure.
11. This Agreed Order shall apply to and be binding upon the Respondents, its officers,
directors, principals, agents, successors, subsidiaries, and assigns. The 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 Respondents shall in any way alter its status or responsibilities under this Agreed
Order.
12. 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 the
Agreed Order did not contain the invalid terms.
13. The Respondents shall provide a copy of this Agreed Order, if in force, to any
subsequent owners or successors before ownership rights are transferred. Respondents
shall by contract require that all contractors, firms, and other persons acting for it comply
with the terms of this Agreed Order.
14. This Agreed Order shall remain in effect until Respondents have completed all development of the site and has complied with all terms and conditions of this Agreed Order.
By: _________________________ By: _________________________
Mark W. Stanifer, Chief
Water Enforcement Section
Office of Enforcement Date: _______________
Department of Environmental
Management
By: _________________________
Date: _______________ Date: _______________
LEGAL RECOMMENDATION 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 _______________________, 1998.
For the Commissioner:
Signed January 20, 1999
Felicia Robinson George
Assistant Commissioner of Enforcement
Converted by Andrew Scriven