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STATE
OF INDIANA |
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BEFORE
THE INDIANA DEPARTMENT |
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COMMISSIONER
OF THE DEPARTMENT Complainant, v. Town of fremont, 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.
Town
of Fremont (Respondent), which owns/operates the Wastewater Treatment Plant
(WWTP), located at 1960 West Swager Drive, Fremont, Steuben County, Indiana (the Site).
3.
Respondent
is authorized by its National Pollutant Discharge Elimination System (NPDES)
Permit No. IN0022942 (the Permit), to discharge wastewater treated in
accordance with the terms and conditions of the NPDES Permit from the WWTP into
Marsh Lake via an unnamed ditch, via Outfall 001.
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/personal service to:
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Steve Brown,
Town Council President |
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Town of
Fremont |
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PO Box 602 |
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205 N Tolford
St |
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Fremont, Indiana
46737 |
6.
IDEM
conducted an inspection on October 15, 2013. IDEM noted that the headworks grit
chamber, fine screen, and hydro grit removal system had excessive rust and
deterioration and were likely at the end of their useful life. IDEM noted that
lift station #4 had severe rusting and pitting due to hydrogen sulfide
corrosion. This lift station sits next to a ditch and failure of the lift
station would result in a discharge to Big Otter Lake. These findings were
summarized in the Inspection Summary Letter dated October 22, 2013.
On
December 6, 2013, IDEM received a response stating that a rate increase had
begun and funds were becoming available to allow for the financial ability to
make necessary repairs.
7.
IDEM
conducted an inspection on November 24, 2015. IDEM noted that the headworks
grit chamber, fine screen, and hydro grit removal system had excessive rust and
deterioration and were at the end of their useful life. IDEM noted that lift
stations #3 and #7 had severe rust on the rails, structure, and within the
control panel. Lift station #7 had one rail completely rusted off and was
laying on the float cables in the wet well. Lift station #4 was not inspected
but the operator stated no repairs had been completed since the last
inspection. Effluent compliance was also rated as unsatisfactory due to
Ammonia-Nitrogen violations. These findings were summarized in the Inspection
Summary Letter dated December 10, 2015.
On
January 7, 2016, IDEM received a response stating that preliminary planning has
been completed for the WWTP and collection system upgrades. The Town intended
to provide an update and schedule for the upgrades to IDEM by April 2016. A
schedule for upgrades was not submitted to IDEM.
8.
During
an investigation conducted by a representative of IDEM, violations were found,
as described below.
9.
327
Indiana Administrative Code (IAC) 5-2-8(1) states 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.
10.
Pursuant
to Part I.A.1 of the Permit, the permittee is required to comply with the
monitoring requirements contained in the Permit, including effluent
limitations.
Discharge
Monitoring Reports (DMRs) and Monthly Reports of Operation (MROs) submitted by
Respondent for the period of February 2016 through December 2018 revealed
violations of effluent limitations contained in Part I.A.1 of the Permit as
follows:
A.
The daily maximum concentration average for
Ammonia-Nitrogen was exceeded during July 2016, May 2017, and September 2018.
B.
The daily maximum loading average for
Ammonia-Nitrogen was exceeded during May 2017.
C.
The monthly concentration average for
Ammonia-Nitrogen was exceeded during May 2017.
Respondent
failed to comply with the effluent limitations from Outfall 001 contained in
the Permit, in violation of Part I.A.1 of the Permit.
11.
Pursuant to 327 IAC 5-2-8(9) and Part II.B.1
of the Permit, the
permittee shall at all times maintain in good working order and efficiently
operate all facilities and systems (and related appurtenances) for collection
and treatment that are:
(A)
installed or used by the permittee; and
(B)
necessary for achieving compliance with the
terms and conditions of the Permit.
During
the inspection on September 27, 2018, the following violations were identified:
A.
The
headworks grit chamber and hydro grit removal system had excessive rust and
deterioration and were at the end of their useful life.
B.
The
influent screen was inoperable. Most of its internal parts appeared to be
missing.
C.
Six
out of the eleven lift stations were observed by an IDEM representative. All
six lift stations observed were in very poor condition, displaying severe rust
and corrosion. A family of mice were found in lift station #2, the alarm light
was inoperable at lift station #3, the Walter street lift station had a broken
hinge, and the Follet street lift station had significant grease/ trash and was
in need of a cleaning.
D.
Two
sleeves of bulbs in the UV system were inoperable.
E.
IDEM
was notified on September 4, 2018, two of the three aeration system blowers
failed.
each in violation of 327 IAC 5-2-8(9) and Part II.B.1 of the
Permit.
During the inspection on September 27, 2018, the aeration system
blowers were repaired.
12.
Pursuant
to Part III.C.9 of the Permit, the permittee is required to conduct an
industrial survey at a minimum frequency of once every two (2) years.
During
the inspection on September 27, 2018, IDEM determined the Respondent was not
conducting industrial surveys as required, in violation of Part III.C.9 of the
Permit.
IDEM
requested the most recent survey for New Horizon Baking Company and a survey
was not available. While touring the town, IDEM noted several industries and a
large industrial park, but no surveys for the industries were available. The
October 5, 2018 noncompliance letter requested industrial surveys for all
industrial contributors to be submitted with the requested response to the
inspection report. Only two (2) surveys were submitted.
13.
On
October 5, 2018, IDEM sent an Inspection Summary Letter to Respondent outlining
violations at the WWTP. The letter required a response detailing actions taken
to correct the violations. On November 4, 2018, IDEM received a response to the
letter requesting an additional 90 days to develop a final resolution, plan,
and schedule to resolve the items that are currently permitted, pending the
conclusion of the bid holding period. To date, IDEM has not received a final
plan.
The
facility obtained a Construction Permit for the construction and installation
of improvements to the wastewater treatment facility on February 20, 2017,
expiring on March 1, 2018. On October 25, 2018, a Construction Permit extension
was granted, expiring on February 1, 2020.
Respondent
hired an engineering firm, engaged bond counsel, and consulted with its
attorneys in June of 2016 to help resolve the sewer and collection system
issues. The engineers proposed two projects: (1) the Wastewater Treatment Plant
project and (2) the Collection System Improvement project. Respondent
advertised the projects and received bids for both projects twice. The projects
were delayed due to circumstances outside of the control of the Respondent. On
March 15, 2019, IDEM received a response to the Notice of Violation issued on
February 28, 2019. On April 3, 2019, IDEM
received a written response. The response outlined the steps Respondent had
taken in an effort to resolve the violations at the Site and complete the
projects. Due to legal and financial complications, the projects have not been
able to proceed as desired by the Respondent.
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 10 through 12 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
75 days of the Effective Date, Respondent shall conduct industrial surveys in
accordance with Part III.C.9 of the Permit and provide documentation to IDEM.
4.
Within 75 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.
Achieve and maintain
compliance with effluent limitations contained in the Permit, specifically Ammonia-Nitrogen;
B.
Complete treatment plant
upgrades to address the violations noted in Paragraph 11 of the Findings of
Fact;
C.
Complete collection
system upgrades to address the violations noted in Paragraph 11 of the Findings
of Fact;
D.
Develop and implement a
preventative maintenance program for;
i.
WWTP equipment, and
ii.
more frequent and
thorough inspections of the eleven lift stations.
The
CP shall include an implementation and completion schedule, including specific
milestone dates.
5.
Respondent shall, after completion of the work
required pursuant to the approved CP from Paragraph 4 above, demonstrate 12
consecutive months of compliance (Compliance Demonstration) with the terms and
conditions of the Permit.
6.
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.
7.
The plans required by Order Paragraphs 4 and 6
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.
8.
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 12 month Compliance
Demonstration, as specified in Paragraph 5 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.
9.
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.
10.
Beginning on the Effective Date and continuing
until the successful completion of implementation of the approved CP as
required by Paragraph 4 above, Respondent shall, at all times, operate its
existing wastewater treatment plant as efficiently and effectively as possible.
11.
All
submittals required by this Agreed Order, unless Respondent is notified
otherwise in writing by IDEM, shall be sent to:
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Brandi
Collignon, Enforcement Case Manager |
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Office
of Water Quality – IGCN 1255 |
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Indiana
Department of Environmental Management |
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100
North Senate Avenue |
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Indianapolis,
IN 46204-2251 |
12.
Respondent
is assessed and agrees to pay a civil penalty of Six Hundred Ninety Dollars ($690).
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.”
13.
In
the event the terms and conditions of the following paragraphs are violated,
IDEM may assess and Respondent shall pay the corresponding stipulated penalty:
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Paragraph |
Violation |
Stipulated Penalty |
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3 |
Failure
to comply with any parts of this paragraph. |
$250
per week late, or part thereof. |
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4 |
Failure
to submit the CP within the required time period. |
$250
per week late, or part thereof. |
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5 |
For
violations of terms and conditions of the Permit during the Compliance
Demonstration. |
$400
per violation |
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6 |
Failure
to submit the AAP, if required, within the given time period. |
$500
per week late, or part thereof. |
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7 |
Failure
to modify the CP and/or AAP, if required, within the given time period. |
$500
per week late, or part thereof. |
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8 |
Failure
to meet and/or implement any milestone date set forth in the approved CP or
AAP. |
$500
per week late, or part thereof. |
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9 |
Failure to submit to IDEM a written
report of progress within 10 days of each calendar quarter. |
$150
per week late, or part thereof. |
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10 |
Failure
to operate the WWTP as efficiently and effectively as possible prior to
Compliance Demonstration. |
$200
per violation. |
14.
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.
15.
Civil
and stipulated penalties are payable by check to the “Environmental Management
Special Fund.” Checks shall include the Case Number 2018-25876-W of this action
and shall be mailed to:
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Office
of Legal Counsel |
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Indiana
Department of Environmental Management |
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IGCN,
Room N1307 |
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100
North Senate Avenue |
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Indianapolis,
IN 46204 |
16.
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.
17.
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.
18.
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.
19.
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.
20.
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.
21.
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.
22.
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.
23.
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.
24.
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.
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TECHNICAL
RECOMMENDATION: |
RESPONDENT: |
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Department
of Environmental Management |
Town of Fremont |
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By:__________________________ |
By:________________________ |
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Samantha K.
Groce, Chief |
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Water
Enforcement Section |
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Surface Water, Operations & |
Printed:_____________________ |
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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 10,
2019 |
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Martha
Clark Mettler |
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Assistant
Commissioner |
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Office
of Water Quality |