STATE OF INDIANA

COUNTY OF MARION

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BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v.

Town of Wheatland,

Respondent.

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Case No. 2019-26484-W

 

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 Wheatland (Respondent) owns/operates the water treatment facility known as Wheatland Water Works, located at 750 E. Main Street Wheatland, Knox County, Indiana (the Site).

 

3.               On June 13, 2019, IDEM received a National Pollutant Discharge Elimination System (NPDES) Permit application from the Respondent. And on September 5, 2019, IDEM issued the final NPDES Permit No. IN0064777 (the Permit) effective date of October 1, 2019. The Permit authorizes Respondent to discharge from Outfall 001 in accordance with the terms and conditions of the Permit. The discharge is limited to filter backwash wastewater.

 

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:

 

Danny Wathen, Town Council President

Danny Wathen, Town Council President

Town of Wheatland

Town of Wheatland

Wheatland Water Department

P.O. Box 219

121 IN-550

Wheatland, IN 47597

Wheatland, IN 47597

 

 

6.               During an investigation on April 2, 2019 conducted by a representative of IDEM, violations were found, as described below.

 

7.               Pursuant to 327 Indiana Administrative Code (IAC) 5-2-2, any discharge of pollutants into waters of the State as a point source discharge is prohibited unless in conformity with a valid NPDES permit obtained prior to the discharge.

Pursuant to IC 13-30-2-1(1) and Part I.B. of the Permit, no person may 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 or into any publicly owned treatment works in any form which causes or would cause pollution which violates rules, standards, or discharge or emission requirements adopted by the appropriate board pursuant to this title.

Pursuant to IC 13-18-4-5, it is unlawful for any person to throw, run, drain, or otherwise dispose into any of the streams or waters of Indiana; or cause, permit, or suffer to be thrown, run, drained, allowed to seep, or otherwise disposed into any waters; any organic or inorganic matter that causes or contributes to a polluted condition of any waters, as determined by a rule of the board adopted under sections 1 and 3 of this chapter.

 

During an inspection conducted by IDEM staff on April 2, 2019, an IDEM representative observed and documented a point source discharge of pollutants from a discharge pipe (later classified as Outfall 001 in the Permit) within a road culvert northwest of the plant into an unnamed tributary to Nimnicht Creek, a water of the State. The discharge was backwash from the drinking water plant and was orange in color. The discharge was in violation of 327 IAC 5-2-2, IC 13-30-2-1(1), and IC 13-18-4-5.

 

8.               Pursuant to 327 IAC 2-1-6(a)(1), the following are minimum water quality conditions, all waters at all times and at all places, including the mixing zone, shall meet the minimum conditions of being free from substances, materials, floating debris, oil or scum attributable to municipal, industrial, agricultural, and other land use practices, or other discharges:

 

(A)                         that produce color, visible oil sheen, odor, or other conditions in such degree as to create a nuisance;

(B)                         which are in amounts sufficient to be acutely toxic to, or to otherwise severely injure or kill aquatic life, other animals, plants or human.

(C)                         which are in concentrations or combinations that will cause or contribute to the growth of aquatic plants or algae to such a degree as to create a nuisance, be unsightly, or otherwise impair the designated uses.

(D)                         that will settle to form putrescent or otherwise objectionable deposits;

(E)                         that are in amounts sufficient to be unsightly or deleterious;

 

During an inspection conducted by IDEM staff on April 2, 2019, an IDEM representative observed and documented an unknown amount of orange, cloudy wastewater discharging from a discharge pipe (later classified as Outfall 001 in the Permit) within a road culvert northwest of the plant into an unnamed tributary to Nimnicht Creek, in violation of 327 IAC 2-1-6(a)(1).

 

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 5-2-13 and Part I. C. 2 of the Permit, to assure compliance with permit terms and conditions, all permittees shall monitor, as required in the permit.

 

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 monitor and submit MROs and DMRs for the month of October 2019, 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.           On April 5, 2019, IDEM sent an Inspection Summary Letter/Noncompliance Letter to Respondent outlining violations. The letter required a response detailing actions taken to correct the violations. IDEM received a response on May 6, 2019, to the letter explaining compliance actions Respondent took or would take to address the violations. However, violations of the narrative water quality standards continue at Outfall 001 and Respondent has failed to submit any MROs or DMRs.

 

11.           Orders of the Commissioner are subject to administrative review by the Office of Environmental Adjudication under IC 4-21.5; however, in recognition of the settlement reached, Respondent acknowledges notice of this right and 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 7 through 9 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.               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.

B.              Assure proper removal, storage and disposal of solids;

C.              Develop and implement a preventative maintenance program for site equipment, and document all maintenance (preventative and repair) in a permanent record;

and

D.              Comply with reporting requirements of the Permit.

 

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.

 

4.               Respondent shall, after completion of the work required pursuant to the approved CP from Paragraph 3 above, demonstrate 12 consecutive months of compliance (Compliance Demonstration) with the terms and conditions of the Permit.

 

5.               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.

 

6.               The plans required by Order Paragraphs 3 and 5 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.

 

7.               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 12 month Compliance Demonstration, as specified in Paragraph 5 above, will re-start. Failure to achieve compliance at the conclusion of work under an AAP may subject Respondent to additional enforcement action.

 

8.               Within 10 days of each required milestone date included in the CP or AAP, Respondent shall submit to IDEM a written progress report or notification of completion for each milestone.

 

9.               Beginning on the Effective Date and continuing until the successful completion of the approved CP, Respondent shall, at all times, operate its existing site as efficiently and effectively as possible.

 

10.           Within 30 days of the Effective Date, Respondent shall electronically submit the missing October 2019 MRO and DMR. Thereafter, and for the purposes of this Order, Respondent shall monitor and submit DMRs and MROs as required by the Permit for six (6) consecutive months of operation.

 

11.           All submittals required by this Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall be sent to:

 

Delaney Isaacs, Enforcement Case Manager

Office of Water Quality – IGCN 1255

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

12.           Respondent is assessed and agrees to pay a civil penalty of One Hundred Thirty-Seven Dollars ($137). 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.”

 

13.           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 the CP within the required time period.

$250 per week late, or part thereof.

5

For violations of terms and conditions of the Permit during the Compliance Demonstration.

$400 per violation

5

Failure to submit the AAP, if required, within the given time period.

$500 per week late, or part thereof.

6

Failure to modify the CP and/or AAP, if required, within the given time period.

$500 per week late, or part thereof.

7

Failure to meet and/or implement any milestone date set forth in the approved CP or AAP.

$500 per week late, or part thereof.

8

Failure to submit to IDEM a written progress report within 10 days of each milestone date.

$150 per week late, or part thereof.

9

Failure to operate the site as efficiently and effectively as possible prior to Compliance Demonstration.

$200 per violation.

10

Failure to submit MROs and DMRs as required by the Permit within the given time period.

$250 per week late, or part thereof.

 

14.           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.

 

15.           Civil and stipulated penalties are payable by check to the “Environmental Management Special Fund.” Checks shall include the Case Number 2019-26484-W of this action and shall be mailed to:

 

Indiana Department of Environmental Management

Accounts Receivable

IGCN, Room 1340

100 North Senate Avenue

Indianapolis, Indiana 46204

 

16.           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 theyrepresent. No change in ownership, corporate, or partnership status of Respondent shall in any way alter its status or responsibilities under this Agreed Order.

 

17.           In the event that the monies due to IDEM pursuant to this Agreed Order are not paid on or before its 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.

 

18.           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.

 

19.           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.

 

20.           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.

 

21.           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.

 

22.           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.

 

23.           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.

 

24.           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 Wheatland

 

By:__________________________

By:________________________

Samantha K. Groce, Chief

 

Water Enforcement Section

 

Surface Water, Operations &

Printed:_____________________

Enforcement Branch

 

Office of Water Quality

Title:_______________________

 

 

Date:________________________

Date:_______________________

 

 

COUNSEL FOR RESPONDENT:

 

 

 

By:________________________

 

 

 

Date:______________________

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS ___________ DAY OF ________________, 20___.

 

 

For The Commissioner:

 

 

Signed on March 11, 2020

 

Martha Clark Mettler

 

Assistant Commissioner

 

Office of Water Quality