STATE
OF INDIANA |
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BEFORE
THE INDIANA DEPARTMENT |
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COMMISSIONER
OF THE DEPARTMENT Complainant, v. town of nashville, 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 Nashville (Respondent), which owns/operates the Nashville Wastewater
Treatment Plant, located at 10 State Road 46 West, Nashville, Brown County,
Indiana (the Site).
3.
Respondent
is authorized by its National Pollutant Discharge Elimination System (NPDES)
Permit No. IN0023876 (the Permit), to discharge wastewater treated in
accordance with the terms and conditions of the NPDES Permit from its Wastewater
Treatment Plant (WWTP) into North Fork Salt 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:
Jane Gore,
Town Council President |
Town of
Nashville |
200
Commercial Drive |
Nashville,
Indiana 47448 |
6.
During
an investigation including inspections on February 28, 2019, and March 8, 2019,
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 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 the
permit is expressly prohibited.
Respondent
had an overflow on February 24, 2019, and unreported overflows to waters of the
State, not specifically authorized by the Permit, in violation of Part II. B. 6
of the Permit.
9.
Pursuant
to 327 IAC 5-2-8(11)(C) and Part II. C. 3 of the Permit, permittee shall orally
report information on any of the following types of noncompliance within
twenty-four (24) hours from the time permittee becomes aware of such
noncompliance:
i.
Any
unanticipated bypass that exceeds any effluent limitation in the permit.
ii.
Violation
of a maximum daily discharge limitation for any of the pollutants listed by the
commissioner in the permit to be reported within twenty-four (24) hours.
iii.
Any
noncompliance that may pose a significant danger to human health or the
environment. Reports under this item shall be made as soon as the permittee
becomes aware of the noncomplying circumstances to (888) 233-7745.
iv.
Any
upset that exceeds any effluent limitation in the permit.
A
written submission shall also be provided within five (5) days of the time the
permittee becomes aware of the circumstances.
Respondent
failed to orally report noncompliance within 24 hours from the time Respondent
became aware of such noncompliance and failed to provide a written submission
within five (5) days of the time Respondent became aware of the circumstance,
in violation of 327 IAC 5-2-8(11)(C) and Part II. C. 3 of the Permit.
10.
Pursuant
to Part II. B. 1. F of the Permit, there shall be an ongoing preventative
maintenance program (PMP) for the sanitary sewer system.
Based on
an inspection on February 28, 2019, Respondent failed to develop and implement
a PMP for the sanitary sewer system, in violation of Part II. B. 1. f of the
Permit.
11.
Pursuant
to 327 IAC 5-2-10 and Part II. B. 4 of the Permit; solids, sludge, filter
backwash, or other pollutants removed from or resulting from treatment or
control of wastewater shall be disposed of in a manner such as to prevent any
pollutant from such materials from entering waters of the State and to be in
compliance with all Indiana statues and regulations relative to liquid and/or
solid waste disposal.
Respondent
failed to dispose of sludge and solids in a manner that prevents materials from
entering waters of the State, in violation of 327 IAC 5-2-10 and Part II. B. 4
of the Permit.
12.
Pursuant
to 327 IAC 5-22-10(1) and Part II. B. 1. e of the Permit, permittee is
responsible for providing adequate funding for and oversight of the wastewater
treatment plant and collection system to ensure proper operation, maintenance,
management, and supervision.
Respondent
has inadequate operating staff to ensure compliance with the conditions of the
Permit, in violation of 327 IAC 5-22-10(1) and Part II. B. 1. e of the Permit.
13.
Pursuant
to IC 13-30-2-1(1), a person may not discharge, emit, cause, allow, or threaten
to discharge, emit, cause, or allow any contaminant or waste, including any
noxious odor, either alone or in combination with contaminants from other
sources into 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.
During
the inspection on February 28, 2019, IDEM staff observed and documented
flooding had occurred on and around Respondent’s salt stockpile causing salt
laden water to discharge to Salt Creek, in violation of IC 13-30-2-1(1).
14.
On March
18, 2019 and March 21, 2019, IDEM sent Inspection Summary Letters to Respondent
outlining violations at the WWTP. 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 WWTP.
15.
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 13 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.
Immediately
upon the Effective Date, Respondent shall orally report noncompliance with 327
IAC 5-2-8(11)(C) and Part II. C. 3 of the Permit within 24 hours from the time
of discovery and provide a written submission within five (5) days to Order
Paragraph 15.
4.
Within
30 days of the Effective Date, Respondent shall develop and submit to IDEM for
approval a Preventative Maintenance Plan (PMP) for the sanitary sewer
collection system, which includes methods and milestone dates for location and
eliminating sources of inflow and infiltration (I/I) in the sewer system.
The
PMP is subject to IDEM approval. In the
event IDEM determines the PMP is deficient or otherwise unacceptable,
Respondent shall revise and resubmit the PMP to IDEM in accordance with IDEM’s
Notices. After three (3) submissions of
the PMP by Respondent, IDEM may seek civil enforcement of this Order.
Respondent,
upon receipt of written notification from IDEM, shall immediately implement the
approved PMP.
5.
Within 45 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.
Assure proper removal,
storage and disposal of sludge solids;
B.
Develop and implement a
preventative maintenance program for WWTP equipment, and document all
maintenance (preventative and repair) in a permanent record;
C. Evaluate and implement means to eliminate SSOs and bypasses;
D. eliminating sources of inflow and infiltration (I/I) in the sewer system;
E.
Comply with reporting
requirements of the permit;
F.
Provide adequate influent
flow measurement; and
G. Eliminate the potential discharge of salt laden water from the salt pile.
The
CP shall include an implementation and completion schedule, including specific
milestone dates.
Respondent
shall notify IDEM in writing of variations to the approved CP.
6.
Within 30 days of the
Effective Date, Respondent shall complete and provide to IDEM an evaluation of organization
and staffing, which shall include clear and appropriate line of authority,
identification of staff responsibilities, qualification of staff, staffing
levels related to required work effort, coordination with other departments,
and contract management (if required).
7.
Respondent shall, after completion of the work
required pursuant to the approved plans above, demonstrate 12 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 5, 6,
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.
11.
Following completion of the actions included in
the AAP, the 12 month Compliance Demonstration, as specified in Paragraph 8
above, will re-start. Failure to achieve compliance at the conclusion of work
under an AAP may subject Respondent to additional enforcement action.
12.
Within 10 days of the completion of each
required milestone included in the CP or AAP, Respondent shall submit to IDEM a
written progress report or notification of completion for each milestone.
13.
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.
14.
All
submittals required by this Agreed Order, unless Respondent is notified
otherwise in writing by IDEM, shall be sent to:
David
Koehler, Enforcement Case Manager |
Office
of Water Quality – IGCN 1255 |
Indiana
Department of Environmental Management |
100
North Senate Avenue |
Indianapolis,
IN 46204-2251 |
15.
Respondent
is assessed and agrees to pay a civil penalty of Four Thousand, Seven Hundred
Dollars ($4,700). 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.”
16.
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 orally report noncompliance and/or submit a written report within 5 days. |
$150
per week late, or part thereof. |
4 |
Failure
to develop and submit a PMP. |
$150
per week late, or part thereof. |
4 |
Failure
to implement the approved PMP. |
$250
per week late, or part thereof. |
5 |
Failure
to submit the CP within the required time period. |
$250
per week late, or part thereof. |
6 |
Failure
to provide an evaluation of organization and staffing. |
$150
per week late, or part thereof. |
7, 11 |
For
violations of terms and conditions of the Permit during the Compliance
Demonstration. |
$400
per violation |
8 |
Failure
to submit the AAP, if required, within the given time period. |
$500
per week late, or part thereof. |
9 |
Failure
to modify the CP and/or 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. |
12 |
Failure to submit to IDEM a written
report of progress within 10 days of each milestone. |
$150
per week late, or part thereof. |
13 |
Failure
to operate the WWTP as efficiently and effectively as possible prior to
Compliance Demonstration. |
$200
per violation. |
17.
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.
18.
Civil
and stipulated penalties are payable by check to the “Environmental Management
Special Fund.” Checks shall include the Case Number 2019-26278-W of this action
and shall be mailed to:
Indiana
Department of Environmental Management |
Accounts
Receivable |
IGCN,
Room 1340 |
100
North Senate Avenue |
Indianapolis,
IN 46204 |
19.
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.
20.
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.
21.
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.
22.
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.
23.
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.
24.
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.
25.
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.
26.
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.
27.
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 Nashville |
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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 December 10,
2019 |
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Martha
Clark Mettler |
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Assistant
Commissioner |
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Office
of Water Quality |