STATE
OF INDIANA |
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BEFORE
THE INDIANA DEPARTMENT |
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COMMISSIONER
OF THE DEPARTMENT Complainant, v. Town of Wheatland, 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 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 |
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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 |
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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 March 11, 2020 |
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Martha
Clark Mettler |
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Assistant
Commissioner |
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Office
of Water Quality |