STATE
OF INDIANA |
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BEFORE
THE INDIANA DEPARTMENT |
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COMMISSIONER
OF THE DEPARTMENT Complainant, v. Huntingburg Municipal Water, 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.
Huntingburg
Municipal Water (Respondent), owns and operates a municipal water treatment
facility that uses wastewater treatment processes that discharges to surface
waters of the State. The facility is
located at 1101 West 6th Street, Huntingburg, Dubois County, Indiana
(the Site).
3.
Respondent
is authorized by its National Pollutant Discharge Elimination System (NPDES)
Permit No. IN0003093 (the Permit), to discharge filter backwash wastewater
treated in accordance with the terms and conditions of the NPDES Permit from
its Wastewater Treatment Plant (WWTP) into Ell Creek from 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:
Honorable
Dennis Spinner, Mayor |
City of
Huntingburg |
508 East 4th
Street |
Huntingburg,
IN 47542 |
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 327 IAC 5-2-14(a) and Part I.C.5 of the Permit, for each measurement or
sample taken pursuant to the requirements of this permit, the permittee shall
maintain records of all monitoring information and monitoring activities,
including:
a.
The
date, exact place and time of sampling or measurement;
b.
The
person(s) who performed the sampling or measurements;
c.
The
date(s) and time(s) analyses were performed;
d.
The
person(s) who performed the analyses;
e.
The
analytical techniques or methods used; and
f.
The
results of such measurements and analyses.
A Compliance Evaluation Inspection was
conducted at the Respondent’s facility on November 1, 2018. The inspection determined that the bench
sheets for the parameters, pH and Total Residual Chlorine (TRC), were lacking
the dates, times, and the initials for the persons performing the analyses, the
analytical techniques or methods used, and Quality Assurance/Quality Control
(QA/QC) data, in violation of 327 IAC 5-2-14(a) and Part I.C.5 of the Permit.
9. 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 and the DMR. All reports shall be submitted electronically using the
NetDMR website.
Respondent
failed to submit MROs and DMRs for the months of May, June, July, August,
September, and October of 2018, in violation of 327 IAC 2-4-1, 327 IAC 5-2-13,
327 IAC 5-2-15, and Part I.C.2 of the Permit.
10.
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 IC 13-18-11-11 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 WWTP under the direct supervision of one certified operator
to be in responsible charge from July 2018 to the date of the inspection on
November 1, 2018.
In
February 2019, a review of the operator’s license on the State website showed
that the certification for the Operator had been updated with a new expiration
date of June 30, 2019.
11.
On
October 26, 2016 and November 1, 2018, IDEM sent Compliance Evaluation
Inspection Summary Letters and Reports to Respondent outlining violations at
the facility. The letters required a response detailing actions taken to
correct the violations. To date, IDEM has not received a response to the above
noted violation and noncompliance letters, and the violations continue at the
facility.
12.
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 10 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 monitor and submit DMRs
and MROs electronically as required by Part I.C.2 of the Permit for six (6)
consecutive months of operation (Compliance Demonstration).
After
the six month compliance demonstration, Respondent must continue to monitor and
submit DMRs and MROs electronically via NetDMR, monthly, as required by the
Permit.
4.
Within
30 days of the Effective Date, Respondent shall electronically submit the
missing MROs and DMRs listed in Paragraph 9 of the Findings of Facts above.
5.
Beginning on the Effective Date and continuing
until the successful closure of the Agreed Order, Respondent shall, at all
times, operate its existing wastewater treatment facilities as efficiently and
effectively as possible.
6.
Respondent
is assessed and agrees to pay a civil penalty of One Thousand Nine Hundred and
Twenty Dollars ($1,920). 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 MROs and DMRs electronically within the given time period. |
$250
per week late, or part thereof. |
4 |
Failure
to submit missing MROs and/or DMRs within the given time period. |
$250
per week late, or part thereof. |
5 |
Failure
to operate the WWTP as efficiently and effectively as possible during six (6)
month Compliance Demonstration. |
$200
per violation. |
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 2019-25921-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 |
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 Huntingburg Municipal Water |
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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 5,
2019 |
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Martha
Clark Mettler |
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Assistant
Commissioner |
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Office
of Water Quality |