STATE
OF INDIANA |
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BEFORE
THE INDIANA DEPARTMENT |
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COMMISSIONER
OF THE DEPARTMENT Complainant, v. gary
sanitary district, 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.
Gary
Sanitary District (Respondent), owns/operates the Wastewater Treatment Plant
(WWTP), located at 3600 West 3rd Avenue, Gary, Lake County, Indiana (the Site).
3.
Respondent
is authorized by National Pollutant Discharge Elimination System (NPDES) Permit
Number IN0022977 (the Permit) to discharge wastewater, treated in accordance
with the terms and conditions of the NPDES Permit, from the WWTP into the East
Branch of the Grand Calumet River, via Outfall 001A and 001B. In addition, the
WWTP collection system is comprised of combined sanitary and storm sewers with
twelve (12) Combined Sewer Overflow (CSO) locations which discharge to the East
Branch of the Grand Calumet River and the West Branch of the Little Calumet
River.
4.
Respondent
provides wastewater collection and treatment to the following satellite
communities: City of Hobart, City of Lake Station, Merrillville Conservancy
District, and New Chicago via the City of Hobart’s sewer system.
5.
IDEM
has jurisdiction over the parties and the subject matter of this action
pursuant to IC 13-30-3.
6.
Pursuant
to IC 13-30-3-3, on November 7, 2018, IDEM issued a Notice of Violation (NOV)
via Certified Mail to:
Daniel F.
Vicari |
Executive
Director |
Gary Sanitary
District |
3600 West 3rd
Avenue |
Gary, Indiana
46406 |
7.
During
an investigation, including an inspection on July 17, 2018 and July 23, 2018,
conducted by a representative of IDEM, violations were found, as described
below.
8.
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 Indiana Code (IC) 13 and is grounds for
enforcement action by IDEM.
9.
Pursuant
to 327 IAC 5-2-8(12)(C) and Part II.B.2.d.1 of the Permit, if the permittee
knows or should have known in advance of the need for a bypass (anticipated
bypass), it shall submit prior written notice. If possible, such notice shall
be provided at least ten (10) days before the date of the bypass for approval
by the commissioner.
Respondent
provided written notice for approval on October 24, 2017 for an October 25,
2017 force main repair (15th Avenue and Clay Street Lift Station)
which would result in a dry weather CSO, in violation of 327 IAC 5-2-8(12)(C) and
Part II.B.2.d.1 of the Permit.
10. Pursuant
to 327 IAC 5-2-8(12)(D) and Part II.B.2.b of the Permit, bypassing is
prohibited, and the Commissioner may take enforcement action against a
permittee for bypass unless certain conditions are met.
Respondent
was notified that the anticipated bypass was not approved on October 24, 2017.
Respondent proceeded with the anticipated bypass from October 25, 2017 through
October 28, 2017, resulting in an estimated total release of 850,000 gallons of
wastewater, in violation of 327 IAC 5-2-8(12)(D) and Part II.B.2.b of the
Permit.
11. Pursuant
to Part II.B.2.d.2 of the Permit, the permittee shall orally report or fax a
report of an unanticipated bypass within 24 hours of becoming aware of the
bypass event. The permittee must also provide a written report within five (5)
days of the time the permittee becomes aware of the bypass event.
As
noted during the July 17, 2018 and July 23, 2018 inspections and a record
review, Respondent failed to report dry weather CSO events on October 26, 2017
to October 28, 2017 as required within 24 hours, in violation of Part
II.B.2.d.2 of the Permit. Respondent did report the October 25, 2017 dry
weather CSO event.
12. Pursuant
to Part II.C.3.d of the Permit, 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.
As
noted during the July 17, 2018 and July 23, 2018 inspections, the permittee failed
to record service calls from residents, including those involving basement
backups, from July 2017 to July 2018, in violation of Part II. C.3.d of the
Permit.
13. The
NOV cited violations of 327 IAC 5-2-8(9) and Part II.B.1 of the Permit. IDEM
has decided not to pursue this matter.
14.
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 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.
Respondent
shall comply with rules and statutes 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 will take to
achieve and maintain compliance with its Permit, specifically including the
actions Respondent will take to:
A.
Evaluate and implement
means to eliminate bypasses, including during maintenance activities; and
B.
Develop a means to comply
with and document reporting required by the Permit, including but not limited
to, service calls from
residents.
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.
5.
In
the event that violation(s) occur during the Compliance Demonstration, within
30 days of the violation, Respondent shall develop and submit to IDEM, for
approval, an Additional Action Plan (AAP) which identifies the additional
actions that Respondent will take to achieve and maintain compliance with the
terms and conditions of the Permit. The AAP, if required, shall include an
implementation and completion schedule, including specific milestone dates.
6.
The plans required by Order Paragraphs 3 and 5
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.
7.
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 AAP shall be
incorporated into the Agreed Order and shall be deemed an enforceable part
thereof.
Following
completion of the actions included in the AAP, the six (6) month Compliance
Demonstration, as specified in Paragraph 4 above, will re-start. Failure to
achieve compliance at the conclusion of work under an Additional Action Plan
may subject Respondent to additional enforcement action.
8.
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 AAP.
9.
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.
10.
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 |
11.
Respondent
is assessed and agrees to pay a civil penalty of Eight Thousand One Hundred Dollars
($8,100). 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.”
12.
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 or modify the CP within the required time period. |
$400
per week late, or part thereof. |
4 |
For
violations of terms and conditions of the Permit during the Compliance
Demonstration. |
$500
per violation |
5, 6 |
Failure
to submit or modify the AAP, if required, within the given time period. |
$250
per week late, or part thereof. |
7 |
Failure
to meet and/or implement any milestone date set forth in the approved CP or AAP. |
$500
per week late, or part thereof. |
8 |
Failure to submit to IDEM a written
report of progress within 10 days of each calendar quarter. |
$300
per week late, or part thereof. |
9 |
Failure
to operate the WWTP as efficiently and effectively as possible prior to
Compliance Demonstration. |
$250
per violation. |
13.
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.
14.
Civil
and stipulated penalties are payable by check to the “Environmental Management
Special Fund.” Checks shall include the Case Number 2018-25639-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 |
15.
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.
16.
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.
17.
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.
18.
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.
19.
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.
20.
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.
21.
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.
22.
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.
23.
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 |
Gary
Sanitary District |
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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 13, 2020 |
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Martha
Clark Mettler |
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Assistant
Commissioner |
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Office
of Water Quality |