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-2253
)
TOWN OF MULBERRY )
)
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
Respondent is Town of Mulberry (hereinafter referred to as "Respondent"), who owns
and operates the Mulberry Wastewater Treatment Plant at 3689 W. County Road 350N,
located in Clinton County, Indiana.
The Indiana Department of Environmental Management ("IDEM") has jurisdiction over
the parties and subject matter of this action.
Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation via Certified Mail to:
Andrew Prater, President
Mulberry Town Council
P.O. Box 515
Mulberry, Indiana 46058
The WWTP is a Class I extended aeration facility which is authorized to discharge 0.165
MGD of treated wastewater to waters of the State named the South Fork of Wildcat
Creek under National Pollutant Discharge Elimination System (NPDES) Permit Number
IN 0031976 (the "Permit"). The Permit authorizes such discharge in accordance with
stated effluent limitations, monitoring requirements and other conditions.
IC 13-30-2-1 states, 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 or 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. The permittee must comply with all terms and conditions of the NPDES permit.
Any permit 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 installed or used by the permittee and which are necessary for
achieving compliance with the terms and conditions of the permit;
D. The permittee shall comply with monitoring, recording, and reporting
requirements established in accordance with 327 IAC 5-2-13, 327 IAC 5-2-14,
and 327
IAC 5-2-15.
Part II.A. 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."
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;
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 degrees as to create a nuisance, be
unsightly, or otherwise impair the designated uses.
Violation of 327 IAC 5-2-8 and the Permit, as noted above is based on a records review
for January 1996 through November 1997, which indicated that the Respondent was in
violation of the Permit final effluent limitations for:
A. Total Suspended Solids (TSS) for the months of March and May, 1996 and
February and May, 1997;
B. Total Residual Chlorine (TRC) for the months of May, June, July, August,
September, October, 1996 and July and August 1997.
IC 13-18-4-5 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
September 9, 1997, an IDEM representative observed sewage solids and sanitary debris
at Outfall 001. 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.
Part II.A.7. of the Permit prohibits any diversion from or bypass of facilities necessary to
maintain compliance with the terms and conditions of the permit, except where
unavoidable to prevent loss of life, personal injury, severe property damage, or there is
no feasible alternative to the bypass, and requires the permittee to promptly notify the
commissioner immediately of such occurrences by telephone and in writing within five
days of such diversion or bypass.
The Clinton County Health Department has documented bypasses from the manhole on
West Street in Mulberry on May 15 and 28, 1996, June 16, 1996, January 11 through 13,
1997, and February 27, 1997. The manhole is not authorized as a bypass point by the
Permit. IDEM has observed evidence of bypasses of untreated wastewater from a
manhole on West Street in Mulberry, numerous times in 1997, in violation of 327 IAC 2-
1-6, 327 IAC 5-2-8, IC 13-30-2-1 and IC 13-18-4-5 and Part II.A.7. of the Permit.
On March 6, 1997, an IDEM representative met with members of Mulberry's Town
Council to discuss the bypassing in Mulberry. The IDEM representative explained that
the discharge of sewage from a manhole is a permit violation and that the cause(s) for
such discharge(s) must be addressed efficiently and expediently. A letter from the Town
was requested, to outline milestone dates as to the commitment to remediate the inflow
and induced overflow of sanitary sewers on West Street in Mulberry. Specifically, the
letter was to be postmarked no later than March 28, 1997, and the milestone dates
included in the letter were to be as follows:
A. Locate possible source(s) for inflow; 3 months
B. Verify Locations (Televise, etc.); 3 months
C. Break Ground for repair; within 6 months
D. Repair complete; 9 months to 1 year
A letter from Jerry Stillings, former Town Council President of Mulberry, was sent to IDEM outlining the plan to solve the bypassing in Mulberry. The letter specifically stated that if a source of inflow could not be located by June, then the Town would begin working on an alternative plan for solving the problem. Mr. Stillings continued to say
that if an alternative plan had to be put in place then engineering plans and funding could
be in place for construction to begin in the fall of 1997.
On September 3, 1997, a letter from Andrew Prater, Town Council President, was
received by IDEM. Mr. Prater informed IDEM that there had been insufficient rainfall
to schedule video-taping in July or August. Smoke testing was done, but was negative
for the inflow problem. The letter stated that a petition for reconstruction of the William
Gery Drain would be referred to an engineer for a reconstruction report.
A settlement conference was held May 19, 1998. The Respondent informed the
attending IDEM representative of the work completed and in progress to the Mulberry
collection system.
Pursuant to IC 13-30-3-3, entry into the terms of this Agreed Order does not constitute an
admission of the violations contained herein.
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 his delegate, and has been received by the Respondent. This Agreed
Order shall have no force or effect until the Effective Date.
Within thirty (30) days from the Effective Date, the Respondent shall submit to IDEM,
for approval, a Compliance Plan (CP), with scheduled milestone dates for actions
identified in the plan. The CP shall include, but not be limited to the following:
A. Solutions to address meeting the final effluent limits set by NPDES Permit
No. IN0031976.
B. Sewer System Study to evaluate the Mulberry collection system. The Study
shall address possible sources of Inflow and Infiltration (I/I) and specific tasks to
eliminate the sources should they be found. The Study shall provide a time frame
for elimination of any or all bypass points.
C. Identify and remediate source(s) of contamination in William Gery Ditch.
The CP is subject to the approval of IDEM. If the plan is deemed inadequate by IDEM, a revised plan shall be submitted within fifteen (15) days of receipt of notice from IDEM
of the inadequacies thereof. If after the submission of the revised plan, IDEM still finds
the documents to be inadequate, then IDEM may require further modification of the plan
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
Respondent within a specified time frame. If such modification is not timely undertaken
or an alternative plan timely submitted by the Respondent is not approved by IDEM, the
Respondent will be subject to stipulated penalties. The Respondent, upon written
notification by IDEM, shall immediately implement the approved plan, including the
dates for completion of the schedule. The approved plan shall be incorporated into the
Agreed Order and shall be deemed an enforceable part thereof.
The Respondent is responsible for obtaining the necessary permits required for any
construction. All construction permit applications, plans and specifications shall be
complete and submitted in a timely manner. A schedule of dates for such actions shall be
included in the CP.
"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 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. "Force Majeure" does not include financial
inability to complete the work required by this Agreed Order or increases in cost to
perform the work.
The Respondent shall notify IDEM by calling within five (5) 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 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 the Respondent from asserting any claiming of force majeure for that event.
The decision of whether an event is a force majeure shall not be unreasonably withheld
by IDEM. Said decision shall be communicated to the Respondent in writing, within a
reasonable amount of time.
If a delay is attributable to a force majeure, IDEM shall extend, in writing, the time
period for performance under this Partial Agreed Order, by the amount of time that is
attributable to the event constituting the force majeure.
All submittals required by this Agreed Order, unless notified otherwise in writing, shall
be sent to:
Terri Van Zant
Indiana Department of Environmental Management
100 N. Senate Avenue
P. O. Box 6015
Indianapolis, IN 46206-6015
Respondent is assessed a civil penalty of Four Thousand Four Hundred Dollars ($4,400).
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.
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 Penalty
Paragraph 2 $750 per week the plan is late for
either original or subsequent
submittals
Paragraph 3 $1000 per week for failure to meet a
milestone date from the approved
plan
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
Indiana Department of Environmental Management
100 N. Senate Avenue
P. O. Box 7060
Indianapolis, IN 46206-7060
In the event that the civil penalty required by paragraph 6 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 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.
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 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: ________________________
Nancy A. Holloran
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 October 18, 1998
Felicia Robinson George
Assistant Commissioner of Enforcement
Converted by Andrew Scriven