STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT
COMMISSIONER OF THE DEPARTMENT )
AGREED ORDER
) SS: OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
)
v. ) CAUSE NO. B-2357
)
CITY OF LAWRENCE )
)
Respondent. )
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
2. Respondent is The City of Lawrence (hereinafter referred to as "Respondent"), which
owns/operates a sanitary wastewater collection system (the "System") which services the
City of Lawrence, Marion County, Indiana. The System transports wastewater to the City
of Indianapolis (the "City") for treatment at the City wastewater treatment plant pursuant
to a sewage service agreement entered into by Respondent and the City. The City
operates a wastewater treatment plant (WWTP) and collection system which is authorized
to discharge treated wastewater under NPDES Permit No. IN 00231833.
3. On September 9, 1998, designated representative(s) of the Indiana Department of
Environmental Management (IDEM) conducted an inspection at the lift station located at
7811 Geist Bluff Drive, Marion County, Lawrence, Indiana ("the Site").
4. 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 October 15, 1998, via
Certified Mail to:
The Honorable Thomas D. Schneider, Mayor
City of Lawrence
4455 McCoy Street
P.O. Box 26286
Lawrence, Indiana 46226-0286
5. 327 IAC 2-6.1-7 states that any person who operates, controls, or maintains any mode of
transportation or facility from which a spill occurs shall, upon discovery of a reportable
spill to the soil or surface waters of the state, do the following:
(1) Contain the spill, if possible, to prevent additional spilled material from entering
the waters of the state.
(2) Undertake or cause others to undertake activities needed to accomplish a spill
response.
(3) As soon as possible but within two (2) hours of discovery, communicate a spill
report to the Department of Environmental Management, Office of Environmental
Response: Area code 1-888-233-7745 for in-state calls (toll free), 1-317-233-7745
for out-of-state calls. If new or updated spill report information becomes known
that indicates a significant increase in the likelihood of damage to the waters of
the state, the responsible party shall notify the department as soon as possible but
within two (2) hours of the time the new or updated information becomes known.
(4) Submit to the Department of Environmental Management, Office of Emergency
Response, 2525 North Shadeland Avenue, P.O. Box 6016, Indianapolis, IN,
46206-6015, a written copy of the spill report if requested in writing by the
department.
(5) Except from modes of transportation other than pipelines, exercise due diligence
and document attempts to notify the following:
(A) for spills to surface waters that cause damage, the nearest affected
downstream water user located within ten (10) miles of the spill and in the
State of Indiana; and
(B) for spills to soil outside the facility boundary, the affected property owner
or owners, operator or operators, or occupant or occupants.
6. 327 IAC 5-2-2 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.
7. 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; and
e. which are in concentrations or combinations that will cause or contribute to the
growth of aquatic plants or algae to such degrees as to create a nuisance, be
unsightly, or otherwise impair the designated uses.
8. IC 13-18-4-5 states, in part, that it is unlawful for any person to throw, run, drain, or
otherwise dispose into any of the streams or waters of this state, or to cause, permit, or
suffer to be thrown, run, drained, allowed to seep, or otherwise disposed into any waters,
any organic or inorganic matter that shall cause or contribute to a polluted condition of
any waters, according to any rule of the board under section 7 of this chapter.
9. IC 13-30-2-1 requires, in substance, that 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 form 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.
10. On September 6, 1998, a mechanical failure of the lift station located at 7811 Geist Bluff
Drive resulted in the overflow of untreated wastewater being discharged into the Dry
Branch Tributary and Geist Reservoir, in violation of 327 IAC 5-2-2, 327 IAC 2-1-
6(a)(1), IC 13-18-4-5, and IC 13-30-2-1.
11. Respondent failed to timely notify the IDEM of the unpermitted discharge once it had
been discovered, in violation of 327 IAC 2-6.1-7.
12. On September 12, 1998, the Indiana Department of Natural Resources (IDNR) responded
to a fish kill at the Site. Approximately 2,388 dead fish were counted at or near the Site
by IDNR representatives. The IDEM was notified by IDNR that a spill and fish kill had
occurred.
13. The Marion County Health Department and IDEM have at least two other documented
incidents of failure to report by the City on unpermitted discharges which occurred on
April 2, 1997 and October 30, 1997, at the lift station located in the area of East 56th
Street and Post Road. Neither of these incidents were timely reported to IDEM, in
violation of 327 IAC 2-6.1-7.
14. The Complainant and Respondent agree that the statement of facts and allegations and
violations described in these "Findings of Fact" are without any admission of liability or
adjudication of fact or law.
15. 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 his delegate, and has been received by the Respondent. This Agreed
Order shall have no force or effect until the Effective Date.
2. The Respondent is hereby assessed a Civil Penalty of Fifteen Thousand Four Hundred
Dollars ($15,400). Within thirty (30) days of the Effective Date of the Agreed Order, the
Respondent shall pay an up front civil penalty of Three Thousand Eighty Dollars
($3,080). The payment shall be submitted to the Environmental Management Special
Fund, as directed by paragraph 6. The remaining Twelve Thousand Three Hundred
Twenty Dollars ($12,320) of the Civil Penalty will be offset by the Respondent's
completion of a Supplemental Environmental Project (SEP).
4. The Respondent has submitted a SEP proposal quoting a total price of Twenty-Four
Thousand Six Hundred Forty Dollars ($24,640). Of this amount, Twelve Thousand
Three Hundred Twenty Dollars ($12,320) may be offset from the total Civil Penalty. The
total funds expended on the SEP shall be a minimum of Twenty-Four Thousand Six
Hundred Forty Dollars ($24,640) .
5. The proposed SEP, which has been approved and is hereby incorporated by reference into this Agreed Order, shall be an enforceable part thereof. Respondent shall have two (2) calender years from the effective date of this Agreed Order to complete the SEP. Within thirty (30) days after completion of the SEP, Respondent shall submit an itemized documentation of costs incurred in performing the SEP to IDEM. In the event the SEP cost is more than $24,640, the Respondent assumes responsibility for all additional costs
without any further offset of the Civil Penalty as cited above in paragraph 2. In the event
the SEP is not completed within the 2 calender year period,
subject to any extension for
cause due to force majeure,
Respondent shall receive no offset, and agrees to pay the
entire balance of the Civil Penalty, Fifteen Thousand Four Hundred Dollars ($15,400),
which shall become immediately due and payable,
plus interest at the rate established by
IC § 24-4.6-1-101, to the Environmental Management Special Fund. Payment of any
remaining Civil Penalty shall be submitted within fifteen (15) days from receipt of a
notice to pay from the IDEM. Interest on the remaining Civil Penalty shall be paid from
the Effective Date of this Agreed Order.
6. Civil 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
7. In the event that the civil penalty required by paragraph 2 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.
8. Under authority of IC 14-22-10-6, Respondent shall reimburse the Indiana Department of
Natural Resources (IDNR) for the value of damages as a result of the death of wild
animals from violations or pollution as set forth in the aforementioned Findings of Fact.
IDNR has determined the value of damages to be One Thousand One Hundred Dollars
and Ninety-Three Cents ($1,100.93) . Payment shall be made to the "Indiana
Department of Natural Resources - Contaminant Fund" within thirty (30) days of the
effective date of this Order, and sent to the IDNR - Division of Fish and Wildlife, Room
W-273, IGCS, 402 West Washington Street, Indianapolis, IN 46204. Respondent shall
provide Complainant with documentation of the reimbursement immediately upon
payment.
9. "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 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. "Force Majeure" does not include financial
inability to complete the work required by this Agreed Order or increases in costs to
perform the work.
10. The Respondent shall notify IDEM by calling within three (3) calendar days and by
writing no later than seven (7) calendar 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 available documentation
supporting their 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. Said decision shall be communicated to the Respondent.
11. 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.
12.
All submittals required by this Agreed Order, unless notified otherwise in writing, shall
be sent to:
Steven M. Judith
Senior Environmental Manager
Office of Enforcement
Indiana Department of Environmental Management
100 N. Senate Avenue
P. O. Box 6015
Indianapolis, IN 46206-6015
13. This Agreed Order shall apply to and be binding upon the Respondent. The Respondent's
signatories to this Agreed Order certify that they are fully authorized to represent and
legally bind the parties they represent. No change in corporate status of the Respondent
shall in any way alter its status or responsibilities under this Agreed Order.
14. 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.
15. 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.
16. This Agreed Order shall remain in effect until Respondent has complied with all terms and conditions of this Agreed Order.
By: _________________________ By: _________________________
Mark Stanifer, Section Chief
Office of Enforcement Printed: ________________________
Title: ________________________
Date: _______________ Date: _______________
COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:
Department of Environmental Management
By: _________________________ By: ________________________
Office of Legal Counsel
Department of Environmental Management
Date: _______________ Date: _______________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS 4th DAY OF JANUARY, 1999.
For the Commissioner:
___________________________
Felicia Robinson George
Assistant Commissioner of Enforcement
Converted by Andrew Scriven