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), 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 |
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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 June 3, 2019 |
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Martha
Clark Mettler |
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Assistant
Commissioner |
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Office
of Water Quality |