STATE
OF INDIANA |
) |
|
BEFORE
THE INDIANA DEPARTMENT |
||
|
|||||
COMMISSIONER
OF THE DEPARTMENT Complainant, v. East Chicago Sanitary district, 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.
Respondent
owns and operates the East Chicago Sanitary District Wastewater Treatment Plant
(WWTP), located at 5201 Indianapolis Boulevard, East Chicago, Lake County, Indiana (the Site).
3.
Respondent
is authorized by National Pollutant Discharge Elimination System (NPDES) Permit
Number IN0022829 (the Permit) to discharge wastewater treated in accordance
with the terms and conditions of the NPDES Permit from the WWTP into the West Branch Grand Calumet River, via
Outfall 001. The Respondent’s collection system is comprised of combined
sanitary and storm sewers with three (3) Combined Sewer Overflow (CSO)
locations; Outfall 002, 003, and 005.
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 11, 2018, IDEM issued a Notice of Violation (NOV)
via Certified Mail to:
The Honorable
Anthony Copeland, Mayor |
City of East
Chicago |
4527
Indianapolis Boulevard |
East Chicago,
Indiana 46312 |
6.
Pursuant
to 327 Indiana Administrative Code (IAC) 5-2-8(1), Permittee shall comply with
all terms and condition 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.
7.
During
an investigation on September 27, 2017, conducted by a representative of IDEM,
violations were found, as described below.
8. Pursuant
to Attachment A, Part III.B of the Permit, the permittee’s implementation of each of the minimum
controls in Part III.A of this Attachment A shall be documented in its approved
CSO Operational Plan (CSOOP). As necessary, the permittee shall update the
CSOOP and submit all updates to the CSOOP to IDEM for approval. The permittee shall
maintain a current CSOOP, including all approved updates, on file at the Publicly
Owned Treatment Works (POTW).
Respondent’s CSOOP was approved on January 1, 1995.
Respondent has not updated and/or submitted updates of the 1995 approved
CSOOP to IDEM for approval, in violation of Attachment A, Part III.B of the
Permit.
Respondent has not complied with the approved CSOOP, in violation of Attachment
A, Part III.B of the Permit. Specifically, Respondent failed to:
1. Report three months (March through May
2017) of discharges from
CSO 005
on the bypass/overflow incident report form during dry weather;
2. Develop a Standard Operating Procedure
(SOP) for dewatering the clarifiers for cleaning and maintenance, as well as
for the dewatering of the CSO lagoon;
3. Inspect the CSO outfalls. This should be
done as part of regular collection system operation and maintenance and needs
to be included in the update to the CSOOP;
4. Maintain accessibility for CSO 002;
5. Install public notification signs for
CSO 003. This outfall is located along the Grand Calumet River and needs to
have signs that are visible from the land and the river; and
6. Maintain visibility for the CSO
notification sign for CSO 005. It is not visible from the receiving stream, and
needs to be moved closer to the receiving stream and outfall location.
9. Pursuant to 327 5-2-8(11)(C) and Part
II.C.3.d of the Permit, the permittee shall orally report information on any of
the following types of noncompliance within twenty-four (24) hours from the
time the permittee becomes aware of such noncompliance:
i.
Any
unanticipated bypass that exceeds any effluent limitation in the permit.
ii.
Violation
of a maximum daily discharge limitation for any of the pollutants listed by the
commissioner in the permit to be reported within twenty-four (24) hours.
iii.
Any
noncompliance that 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 noncomplying circumstances to (888) 233-7745.
iv.
Any
upset that exceeds any effluent limitation in the permit.
Respondent failed to report basement
backups caused by their sewer system, in violation of 327 5-2-8(11)(C) and Part II.C.3.d of the Permit.
10. Pursuant to 327 IAC 5-2.1-6, a CSO
community shall, unless alternative procedures are identified by the community
that are equivalently effective, provide public notice [of CSO discharge(s)] in
a newspaper of general circulation in March of each year to allow the following
to request receipt of CSO notification:
A. Media sources, such as newspapers,
television, or radio.
B. Affected public.
C. Other interested persons in the CSO
community.
Respondent
failed to comply with the annual notification requirement of providing public
notice of CSO discharge(s) in a newspaper of general circulation in March of
each year, in violation of 327 IAC 5-2.1-6.
11. On October 30, 2017, IDEM sent an Audit Summary
Letter to Respondent outlining violations at the WWTP. The letter required a
response detailing actions taken to correct the violations. In addition, IDEM
sent two emails to Respondent on December 20, 2017 and January 9, 2018 and a
Non-Compliance letter on February 9, 2018, requesting a response to the October
30, 2017 Audit Summary letter. A response was received on February 13, 2018 explaining
actions that will be completed to correct the violations and also included an
April 30, 2018 submittal date for the updated CSOOP. To date, IDEM has not
received an updated CSOOP or confirmation that the corrective actions have been
completed.
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 NOV and prior to the Effective Date.
2.
Respondent
shall comply with rules and statutes listed in the findings above at issue.
3.
Within
sixty (60) days of the Effective Date, Respondent shall submit for approval an
updated CSOOP to Order Paragraph 6. The updated CSOOP shall include, but not be
limited to, the correction of the violations stated in Findings of Fact
Paragraphs 8 through 10.
4.
The
CSOOP required by Order Paragraph 3 is subject to IDEM approval. In the event
IDEM determines that the CSOOP submitted by Respondent is deficient or
otherwise unacceptable, Respondent shall revise and resubmit the CSSOP to IDEM
in accordance with IDEM’s notice.
5.
Respondent, upon receipt of written
notification from IDEM, shall immediately implement the approved CSSOP and
adhere to the milestone dates therein.
6.
All
submittals required by this Agreed Order, unless Respondent is notified
otherwise in writing by IDEM, shall be sent to:
Linda
McClure, Enforcement Case Manager |
Office
of Water Quality – IGCN 1255 |
Indiana
Department of Environmental Management |
100
North Senate Avenue |
Indianapolis,
IN 46204-2251 |
7.
Respondent
is assessed and agrees to pay a civil penalty of Four Thousand Five Hundred Dollars
($4,500). 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.”
8.
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 |
Failure
to submit an updated CSSOP within the required time period. |
$400
per week late, or part thereof. |
4 |
Failure
to submit or modify the CSOOP, if required, within the given time period |
$250
per week late, or part thereof. |
5 |
Failure
to implement the approved CSSOP and adhere to the milestone dates. |
$500
per event. |
9.
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.
10.
Civil
and stipulated penalties are payable by check to the “Environmental Management
Special Fund.” Checks shall include the Case Number 2018-25520-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 |
11.
This
Agreed Order shall apply to and be binding upon Respondent, 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.
12.
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.
13.
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.
14.
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.
15.
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 permits or any applicable Federal or State law
or regulation.
16.
Complainant
does not, by his 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.
17.
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.
18.
Nothing
in this Agreed Order shall prevent IDEM (or anyone acting on its behalf) from
communicating with the United States Environmental Protection Agency (US 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
the US EPA or any other agency or entity.
19.
This
Agreed Order shall remain in effect until Respondent has complied with the
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 |
East Chicago Sanitary District |
|
|
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 January 31, 2019 |
|
Martha
Clark Mettler |
|
Assistant
Commissioner |
|
Office
of Water Quality |