STATE
OF INDIANA |
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BEFORE
THE INDIANA DEPARTMENT OF |
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ENVIRONMENTAL
MANAGEMENT |
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COUNTY
OF MARION |
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COMMISSIONER
OF THE DEPARTMENT |
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OF
ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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v. |
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Case
No. 2018-25293-W |
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town of kingsford heights, |
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Respondent. |
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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.
Respondent is the Town of Kingsford
Heights (Respondent), which owns/operates the Wastewater Treatment Plant
(WWTP), located at 800 Lexington Street, in Kingsford Heights, La Porte County,
Indiana (the Site).
3.
Respondent is authorized by its
National Pollutant Discharge Elimination System (NPDES) Permit No. IN0023337
(the Permit), to discharge wastewater treated in accordance with the terms and
conditions of the NPDES Permit from its WWTP into Porter 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.
Pursuant to IC 13-30-3-3, IDEM
issued a Notice of Violation (NOV) via Certified Mail/personal service to:
Renee Wiltfong, President |
Town Council of Kingsford Heights |
504 Grayton Road |
Kingsford Heights, IN 46346 |
6.
During an investigation conducted by
a representative of IDEM, violations were found, as described below.
7.
Pursuant to 327 Indiana
Administrative Code (IAC) 5-2-8(1) Respondent shall comply with all terms and
conditions of the Permit. Any permit
noncompliance constitutes a violation of the Clean Water Act and Indiana Code
(IC) 13 and is grounds for enforcement action by IDEM.
8.
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 Respondent for the periods of April 2015 to July
2018 revealed effluent limitation violations and monitoring requirement
violations contained in the Permit as follows:
a.
The maximum weekly average and
monthly average concentration and loading for ammonia nitrogen was exceeded
during April and May 2017, and January 2018.
b.
The maximum weekly average for
Carbonaceous Biological Oxygen Demand (CBOD) loading was exceeded in May 2017.
c.
The monthly average percent removal
for Total Suspended Solids was exceeded in April 2017.
d.
The daily minimum of residual
chlorine in the contact tank was not maintained in August 2015.
Respondent failed to comply with the effluent limitations
and the sampling requirements, in violation of Part I.A.1 of the Permit.
9.
Pursuant to Part II.B.1(a) of the
Permit, and in accordance with 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 installed or used by the permittee and 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. The permittee shall properly remove and
dispose of excessive solids and sludge.
Pursuant to Part II.B.1(c) of the Permit, the permittee
shall provide an adequate operating staff which is duly qualified to carry out
the operation, maintenance, and testing functions required to ensure compliance
with the conditions of this permit.
Pursuant to Part II.B.(d) of the Permit, maintenance of all
waste collection, control, treatment, and disposal facilities shall be
conducted in a manner that complies with the bypass provisions.
During an inspection conducted by IDEM staff on February
13-16, 2018, the following violations were documented:
a.
One clarifier had solids overflowing
the weir. Another clarifier had been removed from service, as part of an
earlier construction project. A portion of the chlorine contact tank was frozen
and solids had accumulated in the tank.
b.
In December 2016, the settleability
testing registered greater than 95% for the entire month. Respondent took no
operational response actions to correct the high readings on the settleability
testing.
c.
Respondent made no effort to
document or record operational activities, process monitoring, and process
control. Respondent only reported the raw, intermediate, and the final effluent
measurement. No maintenance records were kept by Respondent. The sludge wasting
and storage tank was empty, and not used for equalization or for storage of
excess sludge and/or solids.
d.
During wet weather, infiltration and
inflow (I&I) contribute to hydraulic loading to the plant. The plant is
operating at an annual average of 91% of design capacity and over 100% capacity
during the spring months.
e.
The trash removal system was frozen
and trash and debris at the wet well were overflowing the bar screen.
f.
An adequate alarm system was not
present to alert operators of equipment failure during hours when an attendant
is not on-site.
The operational, maintenance, and sludge disposal issues are
in violation of Part II.B.1(a) through (d) of the Permit and 327 IAC 5-2-8(9).
10.
Pursuant to Part I.A.2 of the Permit
and 327 IAC 2-1-6, all surface water at all times and at all places, including
waters in the mixing zone, shall meet the minimum conditions of being free from
substances, materials, floating debris, oil, scum or other pollutants that do
any of the following:
(A) Will settle to
form putrescent or otherwise objectionable deposits;
(B) Are in amounts
sufficient to be unsightly or deleterious;
(C) Produce color,
visible oil sheen, odor, or other conditions in such degree as to create a
nuisance;
(D) Are in amounts
sufficient to be acutely toxic to, or to otherwise severely injure or kill
aquatic life, other animals, plants, or humans;
(E) Are in concentrations or combinations that
will cause or contribute to the growth of aquatic plants or algae to such a
degree as to create a nuisance, be unsightly, or otherwise impair the
designated uses.
During an inspection conducted at the WWTP during the period
February 13-16, 2018, IDEM documented evidence of sludge and solids in the
receiving stream. The effluent from the WWTP showed evidence of sludge and
solids. On February 15, 2018, the receiving stream showed signs of accumulated
solids discharged from the clarifier. Additionally, scum and solids were
observed in the final effluent at the discharge point, in violation of Part
I.A.2 of the Permit and 327 IAC 2-1-6.
11.
Pursuant to Part II.C.3 of the
Permit, 327 IAC 5-2-8(10) and 327 IAC 5-1-3, the permittee shall orally report
to the Commissioner information on the following incidents within 24 hours from
the time permittee becomes aware of such occurrence. If the incident meets the
emergency criteria of item b (Part II.C.3.b) or 327 IAC 2-6.1, then the report
shall be made as soon as possible, but within two (2) hours of discovery. However,
under 327 IAC 2-6.1-3(1), when the constituents of the discharge are regulated
by this permit, and death or acute injury or illness to animals or humans does
not occur, the reporting requirements of 327 IAC 2-6.1 do not apply.
a.
Any unanticipated bypass which
exceeds any effluent limitation in the permit;
b.
Any emergency incident which may
pose a significant danger to human health or the environment. Reports under
this item shall be made as soon as the permittee becomes aware of the incident
by calling 317/233-7745 (888/233-7745 toll free in Indiana). This number should
only be called when reporting these emergency
events;
c.
Any upset (as defined in Part II.B.3
above) that exceeds any technology-based effluent limitations in the permit;
d.
Any release, including basement
backups, from the sanitary sewer system (including satellite sewer systems
operated or maintained by the permittee) not specifically authorized by this
permit. Reporting of known releases from private laterals not caused by a problem in the sewer
system owned or operated by the permittee is not required
under Part II.C.3, however, documentation of such events must be maintained by
the permittee and available for review by IDEM staff; or
e. Any discharge from any outfall from
which discharge is explicitly prohibited by this permit as well as any
discharge from any other outfall or point not listed in this permit.
During
an inspection conducted at the WWTP during the period February 13-16, 2018,
IDEM documented that Respondent failed to report the overflow and loss of
solids to the receiving stream. Respondent failed to report the recent plant
noncompliance that occurred in January 2018, when the clarifier was surcharging
sludge over the weirs and through the chlorine contact tank. The incidents were
required to be reported within 24-hours and are in violation of Part II.C.3 of
the Permit, 327 IAC 5-2-8(10), and 327 IAC 5-1-3.
12.
Pursuant to Part I.B.6 of the
Permit, for each measurement or sample taken, the permittee shall record and
maintain records of all monitoring information on activities under this permit.
As
determined from the inspection on February 13-16, 2018, Respondent failed to
properly document the exact place, date, and time of sampling or measurement;
the name of the person performing the sampling or measurement, the dates and
times the analyses were performed, the person who performed the analyses, the
analytical techniques or methods used, and the results of all required analyses
and measurements. The failure to record and maintain records of all monitoring
information under the Permit is in violation of Part I.B.6 of the Permit.
13.
Pursuant to Part I.B.8 of the
Permit, all records and information resulting from the monitoring activities
required by the permit, including all records of analyses performed and
calibration and maintenance of instrumentation and recording from continuous
monitoring instrumentation, shall be retained for a minimum of three (3) years.
In cases where the original records are kept at another location, a copy of all
such records shall be kept at the permitted facility.
During
the inspection on February 13-16, 2018, the evaluation of the record keeping
was rated as poor. Respondent failed to keep proper records and failed to
accurately report violations. Records and reports were not readily available
for review by the inspector. The failure to keep records is in violation of
Part I.B.8 of the Permit.
Respondent
failed to properly report violations that occurred during the months of April
and May 2017. The failure to properly report violations is in violation of Part
I.B.8 of the Permit.
14.
On March 6, 2018, IDEM sent an
Inspection Summary/Enforcement Referral Letter to Respondent outlining
violations at the WWTP. On March 21, 2018, a Sewer Ban Early Warning Letter was
sent to the Respondent requiring a response with an adequate plan to address
the hydraulic overloading issues with Respondent’s WWTP. To date, IDEM has not
received a response to the above noted violation and noncompliance letters, and
the violations continue at the WWTP.
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 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 8 through 13
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.
Respondents shall comply with
statute and permit conditions.
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 ammonia nitrogen and
Carbonaceous Biological Oxygen Demand (CBOD);
B.
Assure proper removal, storage and disposal of sludge
solids;
C.
Develop and implement a preventative maintenance program
for WWTP equipment, and document all maintenance (preventative and repair) in a
permanent record; and
D.
Comply with reporting requirements 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 violation(s) 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 as required by Paragraph 3 above, 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 agrees to
pay a civil penalty of Three Thousand
Nine Hundred Twenty Dollars
($3,920). 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 Compliance Demonstration. |
$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 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 2018-25293-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.
TECHNICAL RECOMMENDATION: |
RESPONDENT: |
Department of Environmental
Management |
Town of
Kingsford Heights |
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By:__________________________ |
By:________________________ |
Samantha K. Groce, Chief |
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Water Enforcement Section |
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Surface
Water, Operations & |
Printed:_____________________ |
Enforcement
Branch |
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Office
of Water Quality |
Title:_______________________ |
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Date:________________________ |
Date:_______________________ |
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COUNSEL FOR RESPONDENT: |
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By:________________________ |
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Date:______________________ |
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APPROVED AND ADOPTED BY THE
INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT THIS ___________ DAY OF
________________, 20___. |
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For The Commissioner: |
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Signed on January
18, 2019 |
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Martha Clark Mettler |
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Assistant Commissioner |
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Office of Water Quality |