STATE
OF INDIANA |
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BEFORE
THE INDIANA DEPARTMENT |
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COMMISSIONER
OF THE DEPARTMENT Complainant, v. town of LaFontaine, 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 LaFontaine (Respondent), which owns/operates the Town of LaFontaine
Wastewater Treatment Plant (WWTP), located at 3125 E 1050 S, LaFontaine, Wabash
County, Indiana (the Site).
3.
Respondent
is authorized by its National Pollutant Discharge Elimination System (NPDES)
Permit No. IN0020371 (the Permit), to discharge wastewater treated in
accordance with the terms and conditions of the NPDES Permit from its WWTP into
Grant Creek from Outfall 002.
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:
Jay
Gillespie, Town Council President |
Town of
LaFontaine |
13 West Branson
Street |
LaFontaine,
Indiana 46940 |
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 IC 13 and is grounds for
enforcement action by IDEM.
8.
Pursuant to 327
IAC 3-2-1.5, no person shall cause or allow the construction, installation, or
modification of any water pollution treatment/control facility or sanitary
sewer without a valid construction permit issued by the commissioner.
Pursuant
to 327 IAC 3-2-2, construction shall not commence until all necessary state
approvals and permits are obtained.
On August 22, 2018, IDEM
was notified that the Respondent completed a sanitary sewer project by April
12, 2018, prior to the issuance of a Construction Permit. On November 21, 2018,
IDEM received an application for a construction permit for Phosphorus Removal. On
February 22, 2019, IDEM received a response to the comments to a Deficiency
Notice. On March 5, 2019, a Non-Objection Letter, entitled Plans and
Specifications Review, As-Built Sanitary Sewer, was issued to Respondent as a
result of the unpermitted construction project. The construction of sanitary
sewers without a permit is in violation of 327 IAC 3-2-1.5 and 327 IAC 3-2-2.
To clarify, the unpermitted
construction project discussed is constructed at the WWTP and not within the
collection system.
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.
Respondent
is assessed and agrees to pay a civil penalty of Two Thousand One Hundred
Twenty-Five Dollars ($2,125). 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.”
4.
Civil
penalty is payable by check to the “Environmental Management Special Fund.” Checks
shall include the Case Number 2019-26280-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 |
5.
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.
6.
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.
7.
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.
8.
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.
9.
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.
10.
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.
11.
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.
12.
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.
13.
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 LaFontaine |
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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 November 14,
2019 |
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Martha
Clark Mettler |
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Assistant
Commissioner |
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Office
of Water Quality |