STATE OF INDIANA

COUNTY OF MARION

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BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v.

gary sanitary district,

Respondent.

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Case No. 2018-25639-W

 

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

 

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 13, 2020

 

Martha Clark Mettler

 

Assistant Commissioner

 

Office of Water Quality