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. 2018-25296-W |
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town of
morgantown, |
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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
owns and operates the wastewater treatment plant (WWTP), located at Lick Creek
Road, which is approximately ¾ mile south of the Town of Morgantown, Morgan
County, Indiana (the Site).
3.
Respondent
is authorized by its National Pollutant Discharge Elimination System (NPDES)
Permit Number IN0036820 (the Permit), to discharge wastewater treated in
accordance with the terms and conditions of the Permit from its WWTP into receiving
waters of the State named Indiana Creek from outfall 001. The collection system
is comprised of 100% separate sanitary sewers by design with two (2) sanitary
sewer overflow points identified and prohibited in Attachment A of the Permit.
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, on October 10, 2018, IDEM issued a Notice of Violation via
Certified Mail to:
Michael Day,
Town Council President |
Town of
Morgantown |
P. O. Box 416 |
120 West Washington
Street |
Morgantown,
IN 46160 |
6.
During
an investigation conducted by representatives 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 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.
8.
Pursuant
to 327 IAC 5-2-2 and Part II.B.2.g of the Permit, any overflow or release of
sanitary wastewater from the wastewater treatment facilities or collection
system that results in a discharge to waters of the State, and is not
specifically authorized by this permit, is expressly prohibited.
Pursuant
to IC 13-30-2-1, 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 in any form that causes or would cause pollution
that violates or would violate rules, standards, or discharge or emission
requirements adopted by the appropriate board under the environmental
management laws.
Pursuant
to IC 13-18-4-5, it is unlawful for any person to throw, run, drain, or
otherwise dispose into any of the streams or waters of Indiana; or cause,
permit, or suffer to be thrown, run, drained, allowed to seep, or otherwise
disposed 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 adopted under IC 13-18-4-1 and IC 13-18-4-3.
During
inspections on July 11, 2017 and April 18, 2018, IDEM staff observed and
documented SSOs consisting of raw sewage and solids flowing from two manholes
to a storm drain that flowed to waters of the State, which were not in
accordance with the terms and conditions of the Permit, in violation of 327 IAC
5-2-2, Part II.B.2.g of the Permit, IC 13-30-2-1, and IC 13-18-4-5.
Subsequent
to issuing the Notice of Violation, on June 5, 2019, IDEM staff conducted an
inspection and a records review
of the collection system. Respondent reported 23
hydraulic-related overflow and/or bypass events, and 10 maintenance-related
overflow and/or bypass events and therefore, remains in violation of 327 IAC 5-2-2, Part II.B.2.g of the
Permit, IC 13-30-2-1, and IC 13-18-4-5.
9.
Pursuant
to 327 IAC 5-2-8(3) and Part II.A.2 of the Permit, the permittee is required to
take all reasonable steps to minimize or correct any adverse impact to the
environment resulting from noncompliance with the Permit.
During
inspections on July 11, 2017 and April 18, 2018, IDEM staff observed and noted
that Respondent did not clean up the area surrounding the discharge of
wastewater from the collection system, and therefore, failed to take all
reasonable steps to minimize or correct the adverse impact to the environment
resulting from noncompliance with the Permit, in violation 327 IAC 5-2-8(3) and
Part II.A.2 of the Permit.
10.
Pursuant
to 327 IAC 5-2-8(11)(C), and Part II.B.2.d(2) and Part II.C.3.d of the Permit,
the permittee is required to orally report to the Commissioner any
unanticipated bypass within 24 hours from the time the permittee becomes aware
of the bypass events. The permittee is also required to provide a written
report within five (5) days from the time the permittee becomes aware of the
bypass event.
Respondent
failed to document and report to IDEM the bypass events in the collection
system on July 11, 2017 and April 18, 2018, in violation of 327 IAC 5-2-8(11)(C),
and Part II.B.2.d(2) and Part II.C.3.d of the Permit.
11.
On July
25, 2017, April 23, 2018, and June 13, 2019, IDEM issued Inspection Summary/Noncompliance
Letters to Respondent outlining violations in Respondent’s collection system.
The letters required a response detailing actions taken to correct the
violations. To date, IDEM has not received a response to the above noted
violations and noncompliance letters, and IDEM is not aware if Respondent has
corrected these violations.
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 8 through 10 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 Notice of Violation and
prior to the Effective Date.
2.
Respondent
shall comply with all rules, statues, and permit conditions listed in the
findings above at issue.
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 shall take to
achieve and maintain compliance with the Permit, specifically including the
actions Respondent will take to:
A.
Evaluate and implement
means to eliminate overflows in the collection system and/or bypasses of
treatment; and
B.
Develop and implement a
preventative maintenance program for the collection system, which includes
methods and a schedule for locating and eliminating sources of inflow and
infiltration (I/I) in the collection system.
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 Order Paragraph 3 above, demonstrate six
(6)-consecutive months of compliance (Compliance Demonstration) with the terms
and conditions of the Permit, specifically including compliance with operation,
maintenance, and SSO requirements. 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 Order 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 Order 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.
Beginning with the first calendar quarter
following the Effective Date, Respondent shall submit to IDEM a written
progress report within 10 days of the end of each calendar quarter, which
identifies the compliance actions implemented during each quarter ending March
31st, June 30th, September 30th, and December
31st until completion of the CP or Additional Action Plan.
8.
Beginning on the Effective Date and continuing
until the successful completion of implementation of the approved CP, as
required by Order Paragraph 3 above, Respondent shall, at all times, operate
its existing WWTP and collection system, 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:
Aletha
Lenahan, Enforcement Case Manager |
Office
of Water Quality – IGCN , Room N1255 |
Indiana
Department of Environmental Management |
100
N. Senate Avenue |
Indianapolis,
IN 46204-2251 |
10.
Respondent
is assessed and agrees to pay a civil penalty of Two Thousand, Five Hundred Fifty
Dollars ($2,550). 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, 5 |
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 written quarterly
reports of progress and/or completion for each milestone date included in the
CP or Additional Action Plan. |
$250
per violation |
8 |
Failure
to operate the existing WWTP and collection system 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
2018-25296-W of this action and
shall be mailed to:
Office
of Legal Counsel |
Indiana
Department of Environmental Management |
IGCN,
Room N1307 |
100
N. 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 Notice of Violation.
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 |
Town of Morgantown |
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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 July 31,
2019 |
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Martha
Clark Mettler |
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Assistant
Commissioner |
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Office
of Water Quality |