STATE
OF INDIANA |
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BEFORE
THE INDIANA DEPARTMENT |
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COMMISSIONER
OF THE DEPARTMENT Complainant, v. Town of Hebron, Respondent. |
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AGREED ORDER
Complainant and
Respondents 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 Hebron (Respondent), which owns/operates the Wastewater Treatment Plant
(WWTP), located at 101 Utility Drive, Hebron, Porter County, Indiana (the Site).
3.
Respondent
is authorized by its National Pollutant Discharge Elimination System (NPDES)
Permit No. IN0020061 (the Permit) to discharge wastewater treated in accordance
with the terms and conditions of the NPDES Permit from the WWTP into Cobb
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:
Pete
Breuckman, Town Council President |
Town of
Hebron |
PO Box 478 |
Hebron,
Indiana 46341 |
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 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.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 January 2018 through January 2019 revealed
violations of effluent limitations contained in Part I.A.1 of the Permit as
follows:
A.
The
daily maximum limitation for pH was exceeded during September 2018.
B.
The
weekly maximum average concentration limitation for total suspended solids
(TSS) was exceeded during January 2019.
C.
The
weekly maximum average loading limitation for TSS was exceeded during February and
November 2018, and January 2019.
D.
The
monthly average concentration limitation for TSS was exceeded during January
2019.
E.
The
weekly maximum average concentration limitation for ammonia (as nitrogen) was
exceeded during December 2018.
F.
The
weekly maximum average loading limitation for ammonia (as nitrogen) was
exceeded during November 2018.
G.
The
monthly average concentration limitation for ammonia (as nitrogen) was exceeded
during December 2018.
H.
The
daily maximum limitation for E. coli was exceeded during July and August 2018.
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.
9.
Pursuant
to 327 IAC 5-2-13, to assure compliance with permit terms and conditions, all
permittees shall monitor, as required in the permit.
Pursuant
to Part I.A of the Permit, the permittee is required to take samples and
measurements at a location representative of each discharge to determine
whether the effluent limitations have been met.
During
inspections conducted on December 16, 2016 and January 2, 2019, IDEM noted that
the effluent meter is not, and cannot be calibrated, and therefore is not used
to determine and report effluent flow on the DMRs. The facility is currently
using the influent meter to estimate effluent flow. Respondent failed to
accurately monitor effluent according to the Permit, in violation of 327 IAC
5-2-13 and Part I.A of the Permit.
10.
Pursuant
to Part I.B.1 of the Permit, the permittee is required to take samples and
measurements that are representative of the volume and nature of the monitored
discharge flow and shall be taken at times which reflect the full range and
concentration of effluent parameters normally expected to be present.
During
inspections conducted on December 16, 2016 and January 2, 2019, IDEM noted that
the effluent flow meter, to which the final auto-sampler is connected, has not
been in calibration since 2014 due to problems with the effluent meter. The
facility continues to utilize the uncalibrated effluent flow meter to obtain
flow proportioned composite sampling that is likely causing errors in
compositing. Respondent has failed to collect samples and measurements that are
representative of the volume and nature of the monitored discharge flow, in
violation of Part I.B.1 of the Permit.
11.
IDEM
received a construction permit application on May 1, 2019, seeking approval to
construct significant upgrades to the WWTP. These upgrades are designed to,
among other things, address the violations stated above.
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.
Within 30 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 pH,
TSS, E. coli, and Ammonia-Nitrogen; and
B.
Provide adequate effluent
flow measurement.
The
CP shall include an implementation and completion schedule, including specific
milestone dates.
3.
Respondent shall, after completion of the work
required pursuant to the approved CP from Paragraph 2 above, demonstrate 6
consecutive months of compliance (Compliance Demonstration) with the terms and
conditions of the Permit.
4.
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.
5.
The plans required by Order Paragraphs 2 and 4
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.
6.
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 3 above, will re-start. Failure to
achieve compliance at the conclusion of work under an AAP may subject
Respondent to additional enforcement action.
7.
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 on March
31st, June 30th, September 30th, and December
31st until completion of the CP or AAP.
8.
Beginning on the Effective Date and continuing
until the successful completion of the approved CP, Respondent shall, at all
times, operate its existing WWTP as efficiently and effectively as possible.
9.
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 |
10.
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 CP within the required time period. |
$250
per week late, or part thereof. |
3 |
For
violations of terms and conditions of the Permit during the Compliance
Demonstration. |
$400
per violation |
4 |
Failure
to submit the AAP, if required, within the given time period. |
$500
per week late, or part thereof. |
5 |
Failure
to modify the CP and/or AAP, if required, within the given time period. |
$500
per week late, or part thereof. |
6 |
Failure
to meet and/or implement any milestone date set forth in the approved CP or
AAP. |
$500
per week late, or part thereof. |
7 |
Failure to submit to IDEM a written
report of progress within 10 days of each calendar quarter. |
$150
per week late, or part thereof. |
8 |
Failure
to operate the existing WWTP as efficiently and effectively as possible prior
to Compliance Demonstration. |
$200
per violation. |
11.
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.
12.
Stipulated
penalties are payable by check to the “Environmental Management Special Fund.” Checks
shall include the Case Number 2019-25986-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 |
13.
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.
14.
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.
15.
Force
majeure, for purposes of this Agreed Order, is defined as any event arising
from causes totally beyond the control and without fault of Respondent that
delays or prevents the performance of any obligation under this Agreed Order
despite Respondent’s best efforts to fulfill the obligation. The requirement
that Respondent exercise “best efforts to fulfill the obligation” includes
using best efforts to anticipate any potential force majeure event and best
efforts to address the effects of any potential force majeure event: (1) as it
is occurring; and (2) following the potential force majeure event, such that
the delay is minimized to the greatest extent possible. Force majeure does not
include: (1) changed business or economic conditions; (2) financial inability
to complete the work required by this Agreed Order; or (3) increases in costs
to perform the work.
Respondent
shall notify IDEM by calling the case manager within three (3) calendar days
and by writing no later than seven (7) calendar days after it has knowledge of
any event which Respondent contends is a force majeure. Such notification shall
describe: (1) the anticipated length of the delay; (2) the cause or causes of
the delay; (3) the measures taken or to be taken by Respondent to minimize the
delay; and (4) the timetable by which these measures will be implemented. Respondent
shall include with any notice all available documentation supporting its claim
that the delay was attributable to a force majeure. Failure to comply with the
above requirements shall preclude Respondent from asserting any claim of force
majeure for that event. Respondent shall have the burden of demonstrating that
the event is a force majeure. The decision of whether an event is a force
majeure shall be made by IDEM.
If
a delay is attributable to a force majeure, IDEM shall extend, in writing, the
time period for performance under this Agreed Order, by the amount of time that
is directly attributable to the event constituting the force majeure.
16.
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.
17.
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.
18.
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.
19.
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.
20.
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.
21.
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.
22.
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 |
Town of Hebron |
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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 |