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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 Dale, 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 Dale (Respondent), which owns/operates the Wastewater Treatment Plant (WWTP),
located at 3794 East County Road 1800 North, Dale, Spencer County, Indiana
3.
Respondent
is authorized by its National Pollutant Discharge Elimination System (NPDES)
Permit No. IN0021598 (the Permit), to discharge wastewater treated in
accordance with the terms and conditions of the NPDES Permit from its WWTP into
receiving waters named Ballard Branch to Little Pigeon Creek, 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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Ray Striegel,
Town Council President |
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Town of Dale |
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PO BOX 117 |
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Dale, Indiana
47523 |
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 conditions 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 I.D of the Permit, the Whole Effluent Toxicity Testing (WETT)
requirements of the permit set forth the monitoring, implementation, and
reporting requirements to assess the character and toxicity of the final
effluent from the wastewater treatment facility on aquatic life.
Pursuant
to Part I.D.1.d of the Permit, the permittee shall conduct WETT once annually
for the duration of the permit. The results of the toxicity tests are due once
within each twelve month period as calculated from the effective date of the
permit.
As noted during the record review, Respondent failed to conduct and
submit the WETT results of the Outfall 001 discharge for the periods of July 1, 2015 through June 30, 2016 and July 1, 2017 through June 30,
2018, each in violation of Part I.D of the Permit.
9.
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 Paragraph 8 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 shall, for the purposes of this
Order, conduct and submit WETT results for the duration of the next two
required WETT per the Permit. The next two required WETT per the Permit are for
July 1, 2018 through June 30, 2019 and July 1, 2019 through June 30, 2020 (Compliance
Demonstration). During the Compliance Demonstration period, Respondent shall be
subject to stipulated penalties, as specified below, for failure to conduct and
submit WETT.
It
is the responsibility of Respondent to continue WETT pursuant to the Permit
after completion of the requirements of this paragraph.
4.
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 |
5.
Respondent
is assessed and agrees to pay a civil penalty of Two Thousand Dollars ($2,000).
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.”
6.
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 conduct and submit results
for the required WETT. |
$2,500 per violation |
7.
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.
8.
Civil
and stipulated penalties are payable by check to the “Environmental Management
Special Fund.” Checks shall include the Case Number 2019-25910-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 |
9.
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.
10.
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.
11.
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.
12.
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.
13.
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.
14.
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.
15.
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.
16.
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.
17.
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.
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TECHNICAL
RECOMMENDATION: |
RESPONDENT: |
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Department
of Environmental Management |
Town of Dale |
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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 May 3, 2019 |
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Martha
Clark Mettler |
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Assistant
Commissioner |
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Office
of Water Quality |