INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT

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. 2002-11554-W ) TOWN OF AKRON, )

)

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. The Respondent, the Town of Akron (ARespondent@), owns and operates a wastewater collection system that includes three combined sewer overflow (CSO) points, a constructed wetland treatment system designed to treat certain wet weather flows, and a 0.25 MGD two-cell controlled discharge waste stabilization lagoon wastewater treatment plant located at Noyer Drive, Akron in Fulton County, Indiana,. Respondent is authorized by NPDES Permit No. IN0025232 (the "Permit") to discharge treated wastewater from the waste stabilization lagoon wastewater treatment plant to receiving waters named Chippewanuck Creek in accordance with effluent limitations, monitoring requirements, and other conditions contained in the Permit.

3. The Indiana Department of Environmental Management (AIDEM@) has jurisdiction over the parties and the subject matter of this action.

4. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation on June 25, 2003, via Certified Mail to:

Mr. J. Phillip Allen, President

Town Council of Akron

Town Hall

P. O. Box 218

Akron, IN 46910-0218

5. Pursuant to 327 IAC 5-2-8(1) and Part II.A.1 of the Permit, the Respondent is required to comply with all terms and conditions of the Permit.

6. Pursuant to Attachment A, Part VI of the Permit, a Combined Sewer Overflow (CSO) Long-term Control Plan (LTCP) was to be submitted to IDEM by February 1, 2001.

7. IDEM records indicate that, as of June 1, 2003, the Respondent had failed to submit a LTCP, in violation of 327 IAC 5-2-8(1), Part II.A.1 of the Permit, and Attachment A, Part VI. of the Permit.

In a correspondence dated May 1, 2002, the Respondent requested that IDEM

classify the Respondent as a "small CSO community" for the purpose of LTCP development. In a correspondence dated June 11, 2002, IDEM approved the Respondent's request.

In a correspondence dated July 18, 2002, the Respondent advised IDEM that in

the Fall of 2001, it completed construction of and began utilizing, a constructed wetland treatment system designed to provide treatment to wet weather flows that would otherwise have been discharged (without treatment) to waters of the state via the Respondent's three combined sewer overflow points. The constructed wetland treatment system has a constructed effluent discharge pipe designed to discharge treated effluent to a field tile, which enters Town Lake.

The Respondent has advised IDEM that since the Fall of 2001, there has been one

discharge from the constructed wetland treatment system to the field tile that enters Town Lake. The discharge occurred on July 11, 2003. The Respondent attributes the low frequency of discharge to evapotransporation and evaporation.

11. The Respondent has advised IDEM that there have been no discharges from any of the three combined sewer overflow points other than to the constructed wetland treatment system.

12. The Respondent has advised IDEM that there are no industrial users connected to the Respondent's wastewater collection system.

13. 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 her delegate, and has been received by the Respondent. This Agreed Order shall have no force or effect until the Effective Date.
The Respondent shall, within 90 days of the Effective Date of this Agreed Order, correct the deficiencies in its Combined Sewer Operational Plan noted by IDEM in a correspondence dated May 11, 1999, and shall resubmit the Combined Sewer Operational Plan to IDEM, for approval. In the event that IDEM notifies the Respondent of deficiencies in the Respondent's Combined Sewer Operational Plan, the Respondent shall correct the deficiencies and resubmit the Combined Sewer Operational Plan to IDEM, for approval, within the timeframe specified by IDEM.
The Respondent shall, upon approval by IDEM, implement the Combined Sewer

Operational Plan.

The Respondent shall properly operate and maintain the constructed wetland

treatment system.

The Respondent shall, within 120 days of the Effective Date of this Agreed Order,

submit documentation, including photographs and maps, to IDEM confirming that the three combined sewer overflow structures can no longer discharge other than to the constructed wetland treatment system.

The Respondent shall, within 120 days of the Effective Date of this Agreed Order, submit to IDEM a report ("CSO Control Report") that sets forth the basis for the Respondent's installation of a constructed wetland treatment system as a means of CSO control. The CSO Control Report shall include the following elements:

(A) Public Participation- The report shall include a description of the manner in which the Respondent sought, obtained, and utilized input from the public prior to installing a constructed wetland treatment system as a means of CSO control. Additionally, the report shall include documentation of the public hearing that was held by the Respondent on September 20, 2000, including copies of the agenda, any handouts that were distributed, any comments that were made, the transcript and/or minutes, and the attendance sheet.

Sensitive Areas Consideration- The report shall include a description of the evaluation that was conducted by the Respondent in order to identify sensitive areas and shall include a listing of any sensitive areas that were identified.

Maximization of Treatment at the Wastewater Treatment Plant -

The report shall include documentation that the Respondent consistently maximizes the volume of treated flow at its WWTP prior to and during any diversion of flow to the constructed wetland treatment system, or, to the extent that treated flow is not consistently maximized, the report shall include proposed corrective actions to be taken by the Respondent in order to consistently maximize treated flow at the WWTP prior to and during any diversion of flow to the constructed wetland treatment system, along with a schedule for implementation of the corrective actions. Additionally, the report shall include a description of the peak capacity of the WWTP, and a description of how and when flow is diverted from the wastewater collection system to the constructed wetland treatment system.

(D) Description and Evaluation of CSO controls - The report shall include:

A detailed description of the constructed wetland treatment system;
The itemized costs of the constructed wetland treatment system and a description of the manner in which construction of this system was funded;
The schedule that was followed, including specific dates for the design, construction, and implementation of the constructed wetland treatment system;
A detailed justification for the constructed wetland treatment system, including: a description of the criteria and rationale used by the Respondent to select this system as a means of CSO control, specifically including the rationale for the sizing of the system, a description of other CSO control alternatives that were evaluated by the Respondent, and the reason(s) that other CSO controls evaluated by the Respondent were not selected by the Respondent; and
A detailed description, along with supporting documentation, of the expected and actual performance of the constructed wetland treatment system, including: (i) an analysis of the ability of the constructed wetland treatment system to provide adequate treatment such that any discharges from the system comply with the applicable technology based and water based requirements of the Clean Water Act and state law, as described in Order Paragraph 10 below; and (ii) an analysis of whether wastewater entering the constructed wetland treatment system is potentially soaking into the ground, and potentially reaching ground water, and if so, a description of the potential impact(s) to ground water.

(E) Monitoring- The report shall include a description of any monitoring, including the results of such monitoring, relied upon by the Respondent to support its decision to install the constructed wetland treatment system. In addition, the report shall include the results of any monitoring conducted by the Respondent of any discharge from the constructed wetland treatment system to the field tile that enters Town Lake or the influent to the constructed wetland treatment system. 7. The CSO Control Report is subject to IDEM approval. In the event that IDEM deems the CSO Control report to be deficient, the Respondent shall, upon receiving notice from IDEM of such deficiency, revise and/or supplement the CSO Control Report as necessary to correct the noted deficiency(s), within the timeframe provided by IDEM. This process shall continue until the Respondent submits a CSO Control Report to IDEM that receives IDEM approval.

8. In the event that the approved CSO Control Report contains corrective actions that will be taken by the Respondent to consistently maximize treated flow at the WWTP prior to and during any diversion of flow to the constructed wetland treatment system, the Respondent shall, upon receipt of written notification from IDEM, immediately implement the corrective actions, in accordance with the schedule contained in the approved report. The corrective actions and the schedule contained in the approved CSO Control Report shall be incorporated into this Agreed Order and shall be deemed an enforceable part thereof.

9. The Respondent shall implement a monitoring program in order to evaluate whether the discharge from the wetland treatment system complies with the applicable technology based and water quality based requirements of the Clean Water Act and state law, as described in Order Paragraph 10 below. The monitoring program, shall include, at a minimum, the following:

The Respondent shall monitor both influent channels into the

constructed wetland treatment system at any time that a diversion into the constructed wetland treatment system occurs, and shall monitor all discharges from the constructed wetland treatment system, for pH, ammonia as nitrogen, total suspended solids, carbonaceous biochemical oxygen demand, dissolved oxygen, E. coli, phosphorus, and flow.

The Respondent shall utilize a sample type of "grab" for all

samples.

The Respondent shall utilize permanently installed flow

measurement devices, including chart recorders, to continuously monitor and record the volume of influent flow to the constructed wetland treatment system and the volume of the discharge from the constructed wetland treatment system. The Respondent shall calibrate the flow measurement devices at a minimum frequency of one time per year, and shall maintain at the WWTP, and make available for review by IDEM representatives, records of flow measurement and flow measurement device calibration.

The Respondent shall ensure that all analytical methods and

equipment conform to the current version of 40 CFR Part 136. (E) The Respondent shall ensure that all samples and measurements taken are representative of the volume and nature of the monitored discharge (F) The Respondent shall, for each sample or measurement taken, record, maintain at the WWTP, and make available for review by IDEM representatives, sampling and analytical information. Such information shall include all information required pursuant to Part Part I.B.6 of the Permit.

(G) The Respondent shall submit the results of monitoring to IDEM, by the 28^th day of the month following the monitoring period, as an attachment to the Discharge Monitoring Report and the Monthly Report of Operation.

10. For purposes of this Agreed Order, the discharge from the constructed wetland treatment system shall be considered to comply with the applicable technology-based and water quality based requirements of the Clean Water Act and State law if the discharge complies with the following limitations, for the following parameters:

Parameter	Monthly Average Concentration (mg/l)	Weekly Average Concentration (mg/l)	Daily Maximum Concentration (mg/l) or (s.u)	Daily Minimum Concentration (mg/l)
Flow
E. coli (April through October)	125		235
CBOD5	10	15
T. Ammonia as N:
Summer (May through November)	1.1	1.6
Winter (December through April)	1.6	2.4
Total Suspended Solids	12	18
Dissolved Oxygen				6.0
PH			9	6
Phosphorus			1.0

The Respondent acknowledges that these parameters and limitations are based upon the current nature of the wastewater present in the Respondent's wastewater collection system, i.e., sanitary wastewater and storm water, and the fact that the discharge from the constructed wetland treatment system enters a field tile, which enters a lake (Town Lake). The Respondent further acknowledges that in the event that the nature of the wastewater present in the Respondent's wastewater collection system changes, (e.g. an industrial user connects to the wastewater collection system), additional parameters and/or limitations may apply. 11. In the event that the discharge from the constructed wetland treatment system does not comply with the applicable technology based and water quality based requirements of the Clean Water Act and state law, as described in Order Paragraph 10 above, the Respondent shall, within 90 days of becoming aware of the noncompliance, develop and submit to IDEM for approval, a Compliance Plan (CP) that identifies the actions that the Respondent will take ensure that the discharge from the constructed wetland treatment system complies with applicable technology based and water quality based requirements of the Clean Water Act and state law. The CP shall include an implementation and completion schedule, including specific milestone dates.

12. The CP shall be subject to the approval of IDEM. If IDEM deems the CP to be inadequate, a revised CP shall be submitted within 15 days of receipt of notice from IDEM of the inadequacies thereof. If, after submission of the first revised CP, IDEM still finds the CP to be inadequate, then IDEM will request further modification of the CP as necessary to meet IDEM's requirements, and require re-submittal of the CP by a specific date. If the subsequently submitted second revised CP does not meet IDEM's approval, IDEM will suggest specific modifications to be made to the CP and require re-submittal by a specific date. If, by the specified date, the Respondent does not submit a third revised CP that incorporates the IDEM-suggested modifications or submit an alternative adequate CP (as determined by IDEM), the IDEM-suggested modifications will be deemed incorporated into the CP.

13. The CP shall, upon approval by IDEM, be incorporated into the Agreed Order and shall be deemed an enforceable part thereof. The Respondent, upon receipt of written approval from IDEM, shall immediately implement the approved CP and adhere to the milestone dates contained therein.

14. The Respondent shall notify IDEM, in writing, within 10 days of completion of each action item contained in the approved CP. The notification shall include a description of the action completed and the date it was completed. 15. All submittals required by this Agreed Order, unless specified by IDEM

otherwise, in writing, shall be sent to:

Paul Cluxton, case manager

Water Enforcement Section

Office of Enforcement

Indiana Department of Environmental Management

P.O. Box 6015

Indianapolis, Indiana 46206-6015

and

Section Chief

Urban Wet Weather Section

Office of Water Quality

Indiana Department of Environmental Management

P.O. Box 6015

Indianapolis, Indiana 46206-6015

16. 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:

Paragraph	Violation	Penalty
Order Paragraph 2	Failure to timely resubmit Combined Sewer Operational Plan to IDEM	$250 per week late
Order Paragraph 3	Failure to implement approved Combined Sewer Operational Plan	$500 per violation
Order Paragraph 4	Failure to properly operate and maintain the constructed wetland treatment system	$500 per violation
Order Paragraph 5	Failure to timely submit documentation to IDEM confirming that the three combined sewer overflow structures only discharge to the treatment wetland	$500 per week late
Order Paragraph 6	Failure to timely submit a CSO Control Report that includes all required elements	$250 per week late
Order Paragraph 7	Failure to timely revise and resubmit CSO Control Report	$250 per week late
Order Paragraph 8	Failure to comply with the schedule for implementation of corrective actions contained in the approved CSO Control Report	$250 per week late
Order Paragraph 9	Failure to implement monitoring program, as required	$500 per violation
Order Paragraph 11	Failure to timely submit CP	$250 per week late
Order Paragraph 12	Failure to timely revise and resubmit CP	$250 per week late
Order Paragraph 13	Failure to comply with any milestone date contained in the approved CP	$500 per week late
Order Paragraph 14	Failure to timely submit notification to IDEM	$250 per week late

17. Stipulated penalties shall be due and payable within 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 assessment of the stipulated penalty 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. 18. Stipulated penalties are payable by check to the Environmental Management Special Fund. Checks shall include the Case Number of this action and shall be mailed to: Cashier

IDEM

100 N. Senate Avenue

P.O. Box 7060

Indianapolis, Indiana 46207-7060

19. In the event that any stipulated penalty required to be paid pursuant to Paragraph 16 above is not paid when due, the 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 stipulated penalty is paid in full. 20. 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. 21. 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 22. 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. 23. The provisions of this Agreed Order do not affect the limitations and requirements set forth in Respondent's NPDES permit. Efforts by the Respondent to comply with provisions of this Agreed Order shall not serve as justification for not complying with the limitations and requirements set forth in its NPDES permit.

The Complainant does not, by its approval of this Agreed Order, warrant or aver

in any manner that the Respondent's compliance with any aspect of this Agreed Order will result in compliance with any applicable requirements of its NPDES Permit or of federal or state law or regulation.

25. "Force 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 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 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.

IDEM agrees that, 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.

26. This Agreed Order shall remain in effect until:

the Respondent has complied with all terms of the Agreed Order and has fully implemented the approved CP, if a CP is required; and

b. an effective NPDES Permit issued to the Respondent contains authorization to discharge from, and effluent limitations, monitoring requirements, and other conditions applicable to, the discharge from the constructed wetland treatment system; and c. IDEM issues a Close-Out letter to the Respondent.

TECHNICAL RECOMMENDATION RESPONDENT Department of Environmental Management Town of Akron By: _________________________ By: _________________________ Mark W. Stanifer, Chief Water Enforcement Section Printed: ______________________ Office of Enforcement Title: _______________________ Date: ___________________ Date: ______________________

COUNSEL FOR COMPLAINANT COUNSEL FOR RESPONDENT

Department of Environmental Management

By: _________________________ By: _________________________

Hala K. Silvey

Office of Legal Counsel

Date: _______________ Date: _______________

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _______ DAY OF _______________________, 2003

For the Commissioner:

__(Signed 10/22/03)_____

Felicia A. Robinson

Deputy Commissioner

for Legal Affairs