STATE
OF INDIANA |
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BEFORE
THE INDIANA DEPARTMENT |
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COMMISSIONER
OF THE DEPARTMENT Complainant, v. City of Salem, 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.
The
City of Salem (Respondent), which owns and operates a Water Works Plant,
located at 201 East Market Street, Salem, Washington County, Indiana (the
Site).
3.
Respondent
is authorized by National Pollutant Discharge Elimination System (NPDES) Permit
Number IN0059404 (the Permit) to discharge filter backwash and sedimentation
basin wastewater, via Outfall 001, into Rinkers
Creek. Discharges to Outfall 001 only occur when the Water Work’s holding tank
overflows.
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 February 28, 2019, IDEM issued a Notice of Violation (NOV)
via Certified Mail:
Honorable
Troy Merry, Mayor |
City of Salem |
201 East
Market Street, Suite 102 |
Salem,
Indiana 47167 |
6.
During
an investigation conducted by a representative of IDEM, violations were found,
as described below.
7.
327
Indiana Administrative Code (IAC) 5-2-8(1), the 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.
8. Pursuant to 327 IAC 2-4-1, every
person, firm, or corporation that operates a municipal, industrial, commercial,
or agricultural waste treatment plant control facility or discharges
wastewaters to the waters of the State of Indiana shall submit to the
Commissioner Monthly Reports of Operation (MROs), which shall include flow
measurements and wastewater characteristics.
Pursuant
to 327 IAC 5-2-15, the permittee shall report to the Commissioner, using
Discharge Monitoring Reports (DMRs). The reports shall be submitted as often as
required by the permit, and shall include the results of any monitoring specified
by the permit pursuant to 327 IAC 5-2-13.
Pursuant
to Part I.C.2 of the Permit, the permittee shall submit accurate reports
containing results obtained during the previous monitoring period, and shall be
postmarked no later than the 28th day of the month following each
completed monitoring period. These reports shall include, but not limited to,
the MRO/MMR and the DMR.
Respondent
failed to submit or was late submitting DMRs and MMRs for 19 out of 24 months
during from January 2017 to December 2018, in violation of 327 IAC 2-4-1, 327
IAC 5-2-15, and Part I.C.2 of the Permit.
Respondent
submitted the DMRs for February, May, and August 2017, prior to issuance of the
February 28, 2019 NOV; however, they were submitted late. The DMRs for April,
March, and September 2017 were submitted within the required 28 days. The DMR
for August 2018 was submitted after the February 28, 2019 NOV and therefore is
considered late.
9. Pursuant
to IC 13-18-11-14, it is unlawful for any person, firm, or corporation, both
municipal and private, to operate a water or wastewater treatment plant or a
water distribution system unless the operator in responsible charge is duly
certified by the Commissioner under the provisions of this chapter.
Furthermore, it shall be unlawful for any person to perform the duties of an
operator in responsible charge of such works as defined herein without being
duly certified under the provisions of this chapter.
Pursuant to 327 IAC 5-22-10, the owner or governing body of a WWTP
shall be responsible for placing each WWTP under the direct supervision of one
certified operator to be in responsible charge.
Pursuant to Part II.a.13 of the Permit,
the permittee shall have the wastewater treatment
facilities under the responsible charge
of an operator certified by the Commissioner in a classification corresponding to the classification of the wastewater treatment plant as required by IC13-18-11-11 and 327 IAC 5-22. In order to operate a wastewater treatment
plant the operator
shall have qualifications as established in 327 IAC 5-22-7.
Respondent
failed to place the Site’s discharge under the direct supervision of one AS-O
certified operator to be in responsible charge from June 30, 2017 to October
23, 2018, in violation of IC 13-18-11-14, 327 IAC 5-22-10, and Part II.a.13 of the Permit.
On
October 23, 2018, Respondent employed a certified operator to be in responsible
charge at the Site.
10. 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 9 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.
Beginning
immediately upon the Effective Date, Respondent agrees to monitor and submit
and MMRs and DMRs as required by the Permit for 12 consecutive months of operation
(Compliance Demonstration).
4.
Beginning
immediately upon the Effective Date, Respondent shall ensure that a duly
certified operator is employed.
5.
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 |
6.
Respondent
is assessed and agrees to pay a civil penalty of Two Thousand Three Hundred
Dollars ($2,300). 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.”
7.
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 DMRs and MMRs electronically via NetDMR
within the given time period. |
$250
per week late, or part thereof. |
4 |
Failure
to have a duly certified operator. |
$500
per week late, or part thereof. |
8.
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.
9.
Civil
and stipulated penalties are payable by check to the “Environmental Management
Special Fund.” Checks shall include the Case Number 2018-25832-W of this action
and shall be mailed to:
Office
of Legal Counsel |
Indiana
Department of Environmental Management |
IGCN,
Rm N1307 |
100
North Senate Avenue |
Indianapolis,
IN 46204 |
10.
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.
11.
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.
12.
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.
13.
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.
14.
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.
15.
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.
16.
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.
17.
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.
18.
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 |
City of Salem |
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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 April 1,
2019 |
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Martha
Clark Mettler |
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Assistant
Commissioner |
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Office
of Water Quality |