STATE OF INDIANA

COUNTY OF MARION

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SS:

BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v.

City of Salem,

Respondent.

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Case No. 2018-25832-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.             The City of Salem (Respondent), owns and operates a Wastewater Treatment Plant (WWTP), located at 209 Joseph Street, Salem, Washington County, Indiana (the Site). The collection system is comprised of 100% separate sanitary sewers.

 

3.             Respondent is authorized by its National Pollutant Discharge Elimination System (NPDES) Permit No. IN0021644 (the Permit), to discharge wastewater treated in accordance with the terms and conditions of the NPDES Permit from its Wastewater Treatment Plant (WWTP) into the West Fork of the Blue River, via Outfall 001 at the Site.

 

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, IDEM issued a Notice of Violation (NOV) via Certified Mail to:

 

Honorable Troy Merry, Mayor

City of Salem

201 East Market, 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) states that 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 Part II.B.6 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 13-18-4-5, a person may not: (1) throw, run, drain, or otherwise dispose; or (2) cause, permit, or suffer to be thrown, run, drained, allowed to seep, or otherwise disposed; into any of the streams or waters of Indiana any organic or inorganic matter that causes or contributes to a polluted condition of any of the streams or waters of Indiana.

 

Pursuant to IC 13-30-2-1(1), it is unlawful for any person to discharge, emit, cause or allow any contaminant or waste, including any noxious odor, either alone or in combination with contaminants from other sources in 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 327 IAC 2-1-6(a)(1), all surface waters at all times and at all places, including the mixing zone, shall meet the minimum conditions of being free from substances, materials, floating debris, oil or scum attributable to municipal, industrial, agricultural, and other land use practices or other discharges that do any of the following:

a.        will settle to form putrescent or otherwise objectionable deposits;

b.        are in amounts sufficient to be unsightly or deleterious;

c.    produce color, visible oil sheen, odor, or other conditions in such degree as to create a nuisance;

d.    are in concentrations or combinations that will cause or contribute to the growth of aquatic plants or algae to such degree as to create a nuisance, be unsightly, or otherwise impair the designated uses; and are in amounts sufficient to be acutely toxic to, or to otherwise severely injure or kill aquatic life, other animals, plants, or humans.

 

In 2018, Respondent had six (6) overflow events resulting in an estimated 3,501,500 gallons of raw sewage entering the West Fork of the Blue River. These events occurred on February 25, 2018, April 5, 2018, May 30, 2018 (3 locations), and November 15, 2018, in violation of IC 13-18-4-5, IC 13-30-2-1(1), 327 IAC 2-1-6(a)(1), and Part II.B.6 of the Permit.

 

9.       Pursuant to Part II.B.5 of the Permit, in accordance with 327 IAC 5-2-10 and 327 IAC 5-2-8(14), in order to maintain compliance with the effluent limitations and prohibitions of this permit, the permittee shall either:

a.    provide an alternative power source sufficient to operate facilities utilized by the permittee to maintain compliance with the effluent limitations and conditions of this permit, or

b.    shall halt, reduce or otherwise control all discharge in order to maintain compliance with the effluent limitations and conditions of this permit upon the reduction, loss, or failure of one or more of the primary sources of power to facilities utilized by the permittee to maintain compliance with the effluent limitations and conditions of this permit.

 

Respondent failed to provide an alternative power source for power outages experienced on May 30, 2018 and November 15, 2018, each in violation of Part II.B.5 of the Permit.

 

10.      Pursuant to Part II.A.3 of the Permit, the permittee shall submit any information that the permittee knows or has reason to believe would constitute cause for modification or revocation and reissuance of the permit at the earliest time such information becomes available, such as plans for physical alterations or additions to the facility that could significantly change the nature of, or increase the quantity of, pollutants discharged. The Commissioner may request to evaluate whether such cause exists.

 

As noted during the inspection on September 17, 2018, Respondent’s WWTP process and operation failed to accurately represent the Permit’s facility description, in violation of Part II.A.3 of the Permit; as follows:

a.    there were eight aeration basins (4 used for aeration basins, 2 aerated but not in process, and 2 were empty) at the Site when only three have been permitted in the August 1, 2018 P  ermit;

b.    an unpermitted sludge drying bed was in use; and

c.    the flow meters in use did not match the Permit.

 

11.      Pursuant to 327 IAC 5-2-8(9) and Part II.B.1.a of the Permit, the permittee shall at all times maintain in good working order and efficiently operate all facilities and systems (and related appurtenances, i.e., equipment used for measuring and determining compliance) for collection and treatment that are installed or used by the permittee and necessary for achieving compliance with the terms and conditions of the permit.

 

As noted during the September 27, 2018 inspection, Respondent failed to maintain in good working order and efficiently operate all facilities and systems, in violation of 327 IAC 5-2-8(9) and Part II.B.1.a of the Permit. Specifically:

a.   the ultraviolet disinfection unit was not replaced after the May 2017 flood;

b.   the aeration equipment in the high flow equalization lagoons was not repaired or replaced after the May 2017 flood;

c.   the high flow equalization lagoons are not being pumped back to the plant in a timely manner as evident by wastewater being maintained at extremely high levels;

d.   the lift stations had significant amounts of sludge and grease (Westminister and Rolling Way) and a few are in need of repair (Westminister and South Way Villa); and

e.   excessive inflow and infiltration (I/I) continues to contribute to hydraulic overloading of the WWTP.

 

The ultraviolet disinfection unit and aeration equipment were operational by March 28, 2019.

 

12.      Pursuant to Part II.B.1.f of the Permit, the permittee shall have an ongoing preventative maintenance plan for the sanitary sewer system.

 

As noted during the inspection on September 17, 2018, Respondent did not have an ongoing preventative maintenance program for the WWTP and collection system (including lift stations), in violation of Part II.B.1.f of the Permit.

 

13.      Pursuant to Part II.B.1.c of the Permit, the permittee shall provide an adequate operating staff which is duly qualified to carry out the operation, maintenance, and testing functions required to ensure compliance with the conditions of this permit.

 

As noted during the inspection on September 17, 2018, Respondent did not have adequate operating staff, in violation of Part II.B.1.c of the Permit.

 

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 8 through 14 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.             Within 30 days of the Effective Date, Respondent shall submit verification of the WWTP operation, capacity, and process flow stream (including all process units). The performance rating of the existing treatment units will be evaluated by conducting a Comprehensive Performance Evaluation (CPE). The CPE is a tool adopted by the U.S. EPA as a protocol for evaluation of existing treatment facilities.

 

3.             Within 60 days of the completion of Order Paragraph 3, Respondent shall conduct a model of the existing WWTP using a dynamic operation program developed for capacity, permit compliance, and performance criteria established by the NPDES permit effluent limits.

 

4.             Within five (5) days upon completion of Order Paragraph 3 and 4, Respondent shall submit the CPE and modeling findings and recommendations to Order Paragraph 14.

 

5.             Within 30 days of the completion of Order Paragraph 3 and 4, Respondent shall submit required documentation to update the Permit to the current process flow stream (including all process units) at the Site. The required documentation may include obtaining a Permit modification.

 

6.             Within 60 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, including but not limited to:

A.    a complete Sewer System Evaluation Survey (SSES) shall be conducted to include all collection system infrastructure: sanitary, storm water, surface drainage; such as, streams and river crossing influences and other extraneous clear water sources. The SSES will include the generation of accurate maps of all the infrastructure utilizing a geographic information system (GIS) based framework for the City’s continued use and development in the future.

B.    locate and eliminating sources of inflow and infiltration (I/I);

C.   prevent discharges from the three high flow stabilization lagoons during high rain events;

D.   assure proper removal, storage and disposal of sludge solids;

E.    document that a viable alternate power source exists or provide back-up generators;

F.    remove concrete spillways from neighborhood manholes; and

G.   develop and submit to IDEM a Preventative Maintenance Plan for the WWTP and for the collection system (including lift stations).

 

The CP shall include an implementation and completion schedule, including specific milestone dates.

 

7.             Respondent shall, after completion of the work required pursuant to the approved CP from Paragraph 7 above, demonstrate 6 consecutive months of compliance (Compliance Demonstration) with the terms and conditions of the Permit.

 

8.             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.

 

9.             The plans required by Order Paragraphs 7 and 9 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.

 

10.         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 6-month Compliance Demonstration, as specified in Paragraph 8 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.

 

11.         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.

 

12.         Beginning on the Effective Date and continuing until the successful completion of implementation of the approved CP as required by Paragraph 7 above, Respondent shall, at all times, operate its existing wastewater treatment plant as efficiently and effectively as possible.

 

13.         All submittals required by this Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall be sent to:

 

Brandi Collignon, Enforcement Case Manager

Office of Water Quality – IGCN 1255

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

14.         Respondent is assessed and agrees to pay a civil penalty of Six Thousand Dollars ($6,000). 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.”

 

15.         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

2

Failure to submit the CPE.

$250 per week late, or part thereof.

3

Failure to conduct a model of the existing WWTP.

$250 per week late, or part thereof.

4

Failure to submit the CPE or modeling findings to IDEM.

$150 per week late, or part thereof.

5

If applicable, failure to submit required documentation to Permitting.

$250 per week late, or part thereof.

6, 9

Failure to submit or modify the CP within the required time period.

$250 per week late, or part thereof.

7

For violations of terms and conditions of the Permit during the Compliance Demonstration.

$400 per violation.

8, 9

Failure to submit or modify the AAP, if required, within the given time period.

$500 per week late, or part thereof.

10

Failure to meet and/or implement any milestone date set forth in the approved CP or AAP.

$500 per week late, or part thereof.

11

Failure to submit to IDEM a written report of progress within 10 days of each calendar quarter.

$150 per week late, or part thereof.

12

Failure to operate the existing WWTP as efficiently and effectively as possible prior to Compliance Demonstration.

$200 per violation.

 

16.         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.

 

17.         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, Room N1307

100 North Senate Avenue

Indianapolis, IN 46204

 

18.         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.

 

19.         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.

 

20.         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.

 

21.         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.

 

22.         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.

 

23.         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.

 

24.         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.

 

25.         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.

 

26.         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

 

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 June 3, 2019

 

Martha Clark Mettler

 

Assistant Commissioner

 

Office of Water Quality