STATE
OF INDIANA |
) |
SS: |
BEFORE
THE INDIANA DEPARTMENT OF |
||
|
) |
|
ENVIRONMENTAL
MANAGEMENT |
||
COUNTY
OF MARION |
) |
|
|
||
|
|||||
COMMISSIONER
OF THE DEPARTMENT |
) |
|
|||
OF
ENVIRONMENTAL MANAGEMENT, |
) |
||||
|
) |
||||
Complainant, |
) |
||||
|
) |
||||
v. |
) |
Case
No. 2018-24999-W |
|||
|
) |
|
|||
City of Scottsburg, |
) |
||||
|
) |
||||
Respondent. |
) |
||||
AGREED
ORDER
Complainant and 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. Pursuant to Indiana Code (IC)
13-30-3-3, entry into the terms of this Agreed Order does not constitute an
admission of any violation contained herein.
Respondent's entry into this Agreed Order shall not constitute a waiver
of any defense, legal or equitable, which Respondent may have in any future
administrative or judicial proceeding, except a proceeding to enforce this
order.
I. FINDINGS OF FACT
1.
Complainant is the Commissioner
(Complainant) of the Indiana Department of Environmental Management (IDEM), a
department of the State of Indiana created by IC 13-13-1-1.
2.
The City of Scottsburg (Respondent)
owns and operates the Scottsburg Wastewater Treatment Plant (WWTP), located at
Montgomery and Third Streets, in Scottsburg, Scott County, Indiana (the Site).
3.
Respondent is authorized by its
National Pollutant Discharge Elimination System (NPDES) Permit No. IN0020397
(the Permit), to discharge wastewater treated in accordance with the terms and
conditions of the NPDES Permit from its WWTP into McClain Ditch from Outfall
001.
4.
IDEM has jurisdiction over the
parties and the subject matter of this action pursuant to IC 13-30-3.
5.
On August 13, 2013, July 26, 2016,
and September 29, 2017, Sewer Ban Early Warning letters were issued notifying
the Respondent that the imposition of a Sewer Connection Ban by IDEM may be
necessary due to the chronic hydraulic overload conditions at the Scottsburg
WWTP.
6.
Pursuant to IC 13-30-3-3, IDEM
issued a Notice of Violation (NOV) via Certified Mail to: Honorable William H.
Graham, Mayor, City of Scottsburg, 2 East McClain Avenue, Scottsburg, IN 47170.
7.
During an investigation conducted by
a representative of IDEM, violations were found, as described below.
8.
Pursuant to 327 Indiana Administrative
Code (IAC) 5-2-8(1), Respondent shall comply with all terms and condition of
the Permit. Any permit noncompliance
constitutes a violation of the Clean Water Act and IC 13 and is grounds for
enforcement action by IDEM.
9.
Pursuant to Part I.A.1 of the
Permit, the permittee is required to comply with the monitoring requirements
contained in the Permit, including effluent limitations.
Discharge Monitoring Reports (DMRs) and Monthly Reports of
Operation (MROs) submitted by the Respondent revealed effluent limitation
violations and monitoring requirement violations contained in the Permit as
follows:
a.
The maximum weekly average
concentration for ammonia nitrogen was exceeded during March and June 2015.
b.
The maximum weekly average for
cyanide and a monthly average concentration for cyanide were exceeded in June
2015.
c.
The daily maximum concentration for
E.coli was exceeded during April, June, August, September, October 2015, and
July and October 2016.
d.
The maximum weekly average and the
monthly average limits for total suspended solids (TSS) were exceeded during
November 2015 and November 2017.
e.
Respondent failed to conduct
quarterly sampling of the effluent gross and the raw sewage influent for
nickel, silver, zinc, cadmium, lead, chromium, and copper during June 2017.
f.
Respondent failed to conduct
semi-annual sampling of the sludge for copper, cadmium, molybdenum, zinc, lead,
nickel, and mercury during June 2017.
Monitoring results for the above-listed parameters were submitted late
during August 2017.
Respondent failed to comply with the effluent limitations
and the sampling requirements, in violation of Part I.A.1 of the Permit, and 327 IAC 5-2-8(1).
10. Pursuant to Part II.B.1(a) of the Permit
and 327 IAC 5-2-8(9), 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 that are:
(A) installed or used by the
permittee; and (B) necessary for achieving compliance with the terms and
conditions of the permit.
Pursuant to Part II.B.1(b) of the
Permit, the permittee shall operate the permitted facility in a manner which
will minimize upsets and discharges of excessive pollutants.
As noted during inspections conducted on February 17, 2015,
February 16, 2016, and December 12, 2016, the WWTP routinely experienced
excessive inflow and infiltration in the collection system resulting in a
hydraulically overload at the WWTP. The
chronic hydraulic overload conditions contribute to the facility’s failure to
consistently meet effluent limitations, in violation of Part II.B.1 of the
Permit and 327 IAC 5-2-8(9).
11.
Pursuant to 327 IAC 3-2-1.5, no
person shall cause or allow the construction, installation, or modification of
any water pollution treatment/control facility or sanitary sewer without a
valid construction permit issued by the commissioner.
Pursuant to 327 IAC 3-2-2, construction shall not commence
until all necessary state approvals and permits are obtained.
As noted during an inspection conducted on December 6, 2017,
Respondent constructed a phosphorus treatment facility (building with chemical feed system) at the WWTP without a
valid construction permit issued by the Commissioner, in violation of 327 IAC
3-2-1.5 and 327 IAC 3-2-2.
12.
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 adopted by Complainant or Complainant’s delegate
(as evidenced by signature), and the adopted Agreed Order has been received by
Respondent. This Agreed Order shall have
no force or effect until the Effective Date.
In addition to addressing the violations cited in Paragraphs 9 through 11
of the Findings of Fact above, this Agreed Order also addresses any additional
violations of these same rules that may have occurred subsequent to the
issuance of the NOV and prior to the Effective Date.
2.
Respondent shall comply with rules,
statutes, and permit conditions listed in the findings above at issue. Specifically, Respondent shall comply with
Part I.A.1 of the Permit, Part II.B.1(a) of the Permit and 327 IAC 5-2-8(9),
327 IAC 3-2-1.5, 327 IAC 3-2-2.
3.
Within 30 days of the Effective Date, Respondent shall
develop and submit to IDEM for approval a Compliance Plan (CP) which identifies
actions that Respondent will take to achieve and maintain compliance with its
Permit, specifically including the actions Respondent will take to:
A.
Achieve and maintain compliance with effluent
limitations contained in the Permit, specifically those listed in Part 1.A of
the Permit;
B.
Develop and implement a preventative maintenance program
for the sanitary sewer collection system, which includes methods and milestone
dates for locating and eliminating sources of inflow and infiltration (I/I) in
the sewer system;
C.
Comply with reporting requirements of the permit; and
D.
Achieve and maintain compliance with Facility Operation,
Maintenance, and Quality Control requirements listed in Part II.B of the
Permit.
The
CP shall include an implementation and completion schedule, including specific
milestone dates.
4.
Respondent
shall, after completion of the work required pursuant to the approved CP from
Paragraph 3 above, demonstrate six (6) consecutive months of compliance
(Compliance Demonstration) with the terms and conditions of the Permit,
specifically including compliance with effluent limitations, reporting
requirements, and operation and maintenance.
During the Compliance Demonstration, Respondent shall be subject to
stipulated penalties, as specified below, for violations of the terms and
conditions of the Permit.
In
the event that violations occur during the Compliance Demonstration, within 60
days of the violation, Respondent shall develop and submit to IDEM, for
approval, an Additional Action Plan which identifies the additional actions
that Respondent will take to achieve and maintain compliance with the terms and
conditions of the Permit. The Additional
Action Plan, if required, shall include an implementation and completion
schedule, including specific milestone dates.
5.
The
plans required by Paragraphs 3 and 4 above are subject to IDEM approval. In the event IDEM determines that any plan
submitted by Respondent is deficient or otherwise unacceptable, Respondent
shall revise and resubmit the plan to IDEM in accordance with IDEM’s
notice. After three submissions of such
plan by Respondent, IDEM may seek civil enforcement of this Order.
6.
Respondent,
upon receipt of written notification from IDEM, shall immediately implement the
approved plan(s) and adhere to the milestone dates therein. The approved CP and Additional Action Plan
shall be incorporated into the Agreed Order and shall be deemed an enforceable
part thereof. Failure by Respondent to
submit any plan by the specified date, or to meet any of the milestones in the
approved plan(s), will subject Respondent to stipulated penalties as described
below. Following completion of the
actions included in the Additional Action Plan, the 6-month Compliance
Demonstration, as specified in Paragraph 4 above, will re-start, and Respondent
shall be subject to stipulated penalties, as specified below, for violations of
the terms and conditions of the Permit during this time period. Failure to achieve compliance at the
conclusion of work under an Additional Action Plan may subject Respondent to
additional enforcement action.
7.
Within
10 days of the completion of each required milestone included in the CP or
Additional Action Plan, Respondent shall submit to IDEM a written progress
report or notification of completion for each milestone.
8.
Beginning
on the Effective Date and continuing until the successful completion of
implementation of the approved CP and/or Additional Action Plan, Respondent
shall, at all times, operate its existing wastewater treatment plant as
efficiently and effectively as possible.
9.
All submittals required by this
Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall
be sent to:
Patrick Colcord, Enforcement Case
Manager |
Office of Water Quality – IGCN
1255 |
Indiana Department of
Environmental Management |
100 North Senate Avenue |
Indianapolis, IN 46204-2251 |
10.
Respondent is assessed and agree to
pay a civil penalty of Eight Thousand Four Hundred Thirty Five Dollars ($8,435). Said penalty amount shall be due and payable
to the “Environmental Management Special Fund” within 30 days of the Effective
Date; the 30th day being a “Due Date.”
11.
In the event the terms and
conditions of the following paragraphs are violated, IDEM may assess and
Respondent shall pay the corresponding stipulated penalty:
Paragraph |
Violation |
Stipulated Penalty |
3, 5 |
Failure to submit or modify the CP
within the required time period. |
$500 per week late, or part
thereof. |
4, 6 |
For violations of terms and
conditions of the Permit during the six (6) month Compliance Demonstration
period. |
$500 per violation |
4, 6 |
Failure to submit or modify the
Additional Action Plan, if required, within the given time period. |
$250 per week late, or part
thereof. |
6 |
Failure to implement and/or meet
any milestone date set forth in the approved CP or Additional Action Plan. |
$500 per week late, or part
thereof. |
7 |
Failure
to submit to IDEM a written report of progress or completion for each
milestone date included in the CP or Additional Action Plan within 10 days of
completion of the requirements of each milestone. |
$250
per violation |
8 |
Failure to operate the WWTP as
efficiently and effectively as possible. |
$250 per violation. |
12.
Stipulated penalties shall be due
and payable no later than the 30th
day after Respondent receives written notice that IDEM has determined a
stipulated penalty is due, the 30th
day being a “Due Date.” IDEM may notify
Respondent at any time that a stipulated penalty is due. Failure to notify Respondent in writing in a
timely manner of a stipulated penalty assessment shall not waive IDEM’s right
to collect such stipulated penalty or preclude IDEM from seeking additional
relief against Respondent for violation of this Agreed Order. Neither assessment nor payment of stipulated penalties shall
preclude IDEM from seeking
additional relief against Respondent for a violation of this Agreed Order.
Such additional relief includes
any remedies or sanctions available pursuant
to Indiana law, including, but not limited to, civil penalties pursuant
to IC 13-30-4.
13.
Civil and stipulated penalties are
payable by check to the “Environmental Management Special Fund.” Checks shall include the Case Number
2018-24999-W of this action and shall be mailed to:
Office of Legal Counsel |
Indiana Department of
Environmental Management |
IGCN, Room N1307 |
100 North Senate Avenue |
Indianapolis, IN 46204 |
14.
This Agreed Order shall apply to and
be binding upon Respondent and its successors and assigns. Respondent’s
signatories to this Agreed Order certify that they are fully authorized to
execute this Agreed Order and legally bind the party they represent. No change in ownership, corporate, or
partnership status of Respondent shall in any way alter its status or
responsibilities under this Agreed Order.
15.
In the event that the monies due to
IDEM pursuant to this Agreed Order are not paid on or before their Due Date,
Respondent shall pay interest on the unpaid balance and any accrued interest at
the rate established by IC 24-4.6-1. The
interest shall be computed as having accrued from the Due Date until the date
that Respondent pays any unpaid balance.
The interest shall continue to accrue on the first of each month until
the civil penalty and any interest accrued are paid in full. Such interest shall be payable to the “Environmental
Management Special Fund,” and shall be payable to IDEM in the manner specified
above.
16.
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 this Agreed Order
did not contain the invalid terms.
17.
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.
18.
This Agreed Order is not and shall
not be interpreted to be a permit or a modification of an existing permit. This Agreed Order, and IDEM’s review or
approval of any submittal made by Respondent pursuant to this Agreed Order,
shall not in any way relieve Respondent of its obligation to comply with the
requirements of its applicable permit or any applicable Federal or State law or
regulation.
19.
Complainant does not, by its
approval of this Agreed Order, warrant or aver in any manner that Respondent’s
compliance with any aspect of this Agreed Order will result in compliance with
the provisions of any permit, order, or any applicable Federal or State law or
regulation. Additionally, IDEM or anyone
acting on its behalf shall not be held liable for any costs or penalties
Respondent may incur as a result of Respondent’s efforts to comply with this
Agreed Order.
20.
Nothing in this Agreed Order shall
prevent or limit IDEM’s rights to obtain penalties or injunctive relief under
any applicable Federal or State law or regulation, except that IDEM may not,
and hereby waives its right to, seek additional civil penalties for the same
violations specified in the NOV.
21.
Nothing in this Agreed Order shall
prevent IDEM [or anyone acting on its behalf] from communicating with the
United States Environmental Protection Agency (EPA) or any other agency or
entity about any matters relating to this enforcement action. IDEM or anyone acting on its behalf shall not
be held liable for any costs or penalties Respondent may incur as a result of
such communications with EPA or any other agency or entity.
22.
This Agreed Order shall remain in
effect until Respondent has complied with all terms and conditions of this
Agreed Order and IDEM issues a Resolution of Case (close out) letter to
Respondent.
REMAINDER OF PAGE
INTENTIONALLY LEFT BLANK.
TECHNICAL RECOMMENDATION: |
RESPONDENT: |
Department of Environmental
Management |
City of
Scottsburg |
|
|
By:__________________________ |
By:________________________ |
Samantha K. Groce, Chief |
|
Water Enforcement Section |
|
Surface
Water, Operations & |
Printed:_____________________ |
Enforcement
Branch |
|
Office
of Water Quality |
Title:_______________________ |
|
|
Date:________________________ |
Date:_______________________ |
|
|
|
COUNSEL FOR RESPONDENT: |
|
|
|
By:________________________ |
|
|
|
Date:______________________ |
|
|
APPROVED AND ADOPTED BY THE
INDIANA DEPARTMENT OF ENVIRONMENTAL |
|
MANAGEMENT THIS ___________ DAY OF
________________, 20___. |
|
|
|
|
For The Commissioner: |
|
|
|
Signed on September 18, 2019 |
|
Martha Clark Mettler |
|
Assistant Commissioner |
|
Office of Water Quality |