STATE
OF INDIANA |
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BEFORE
THE INDIANA DEPARTMENT |
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COMMISSIONER
OF THE DEPARTMENT Complainant, v. Town of colfax, 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 Colfax (Respondent), owns and operates the wastewater treatment plant
(WWTP), located at 700 Harvey Street, Colfax, Clinton County, Indiana (the
Site).
3.
Respondent
is authorized by its National Pollutant Discharge Elimination System (NPDES)
Permit Number IN0020443 (Permit) to discharge wastewater treated in accordance
with the terms and conditions of the Permit from its WWTP into receiving waters
of the State, which is Withe Creek via Outfall 001.
4.
The
collection system is comprised of 100% separate sanitary sewers by design with
no overflow or bypass points. Overflow or release of sanitary wastewater from
the WWTP or collection system that is not authorized by the Permit is expressly
prohibited.
5.
IDEM
has jurisdiction over the parties and the subject matter of this action
pursuant to IC 13-30-3.
6.
Pursuant
to IC 13-30-3-3, on February 4, 2020, IDEM issued a Notice of Violation via
Certified Mail to:
Bob Stambaugh, Council President |
Town of Colfax |
P. O. Box 326 |
Colfax, IN 46035 |
7.
During
an investigation conducted by IDEM’s representatives, violations were found, as
described below.
8.
Pursuant
to 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.
9.
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 1, 2016 through November 1, 2019 revealed
violations of effluent limitations contained in Part I.A.1 of the Permit for
total suspended solids (TSS), Ammonia (as nitrogen), total Chlorine residual
(Chlorine), and Escherichia coli (E. Coli) as follows:
A.
The
weekly maximum average concentration limitation for TSS was exceeded during
June 2019.
B.
The
weekly maximum average loading (lbs/day) limitation for Ammonia was exceeded
during April, May, July and November, 2017, February
and March 2018, and January, February, April, May and June 2019.
C.
The
weekly maximum average concentration (mg/l) limitation for Ammonia was exceeded
during May 2019.
D.
The
monthly average loading (lbs/day) limitation for Ammonia was exceeded during
April, May, July and November, 2017, February 2018,
and February, April, May and June 2019.
E.
The
daily minimum concentration limitation for Chlorine was exceeded during May
2017.
F.
The
daily maximum concentration limitation for Chlorine was exceeded during April
2018.
G.
The
daily maximum total coliform (forming units/100ml) concentration limitation for
E. Coli was exceeded during April, May, July and October 2017, April 2018, and
April and May 2019.
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 and 327 IAC 5-2-8(1).
10.
Part
II.B.1 of the Permit, in accordance with 327 IAC 5-2-8(9), the permittee shall
at all times maintain in good working order and efficiently operator all
facilities and systems (and related appurtenances) for collection and treatment
that are:
(1)
Installed or used by the permittee; and
(2)
Necessary for achieving compliance with the
terms and conditions of the Permit.
Part
II.B.1.f of the Permit requires that there is to be an
ongoing preventative maintenance program for the collection system.
Pursuant
to IC 13-30-2-1, 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 April 24, 2017, and in subsequent record reviews, IDEM’s
representatives discovered that the WWTP is operating at 150% of the plant’s design
capacity. The WWTP is hydraulically overloaded due to inflow and infiltration (I&I) in the collection system.
Respondent failed to have an ongoing preventative maintenance program for the collection
system that would prevent sanitary sewer overflows (SSOs), I&I, and hydraulic overloading at the
WWTP, in violation of Part II.B.1.f of the Permit and IC 13-30-3-1.
Also during the inspection conducted on
April 24, 2019, IDEM’s representative observed and documented that Respondent
failed to have an adequate alarm system necessary to alert WWTP operators of
equipment failure during times when no one is at the Site. Specifically, the
WWTP has a camera system to alert employees of a power outage, but currently no
remote (SCADA) system is in place to alert Respondent and its operators of
equipment failure or overflows due to high water levels in the WWTP at all
times, in violation of Part II.B.1 of the Permit and 327 IAC 5-2-8(9).
11.
Pursuant
to Part II.B.2.b of the Permit and 327 IAC 5-2-8(12)(D), bypassing is
prohibited, and the Commissioner may take enforcement action against a
permittee for bypass unless certain conditions are met.
During
the inspection conducted on April 24, 2017, IDEM’s representative observed and
documented that Respondent failed to provide continuous disinfection during the
required disinfection season from April 1 through October 1, annually.
Specifically, Respondent failed to prevent unpermitted bypassing of treatment at
the Chlorine contact tank when the Chlorine disinfection system was not in
operation, and the WWTP continued to discharge partially treated wastewater, in
violation of Part II.B.2.b of the Permit and 327 IAC 5-2-8(12)(D).
Subsequent to the issuance of the Notice of
Violation, IDEM was made aware that during the time of the inspection,
Respondent was performing maintenance on the Chlorine disinfection system,
which was the reason for the unpermitted bypassing of treatment. Respondent has
since changed its maintenance process, which allows for the wastewater to
return to the headworks when the chlorine disinfection system is taken out of
service for maintenance.
12.
Pursuant
to Part II.B.2.d.(2) of the Permit, the permittee shall orally report or fax a
report of an unanticipated bypass within 24 hours of becoming aware of the
bypass event. The permittee must also provide a written report within five (5)
days of the time the permittee becomes aware of the bypass event. The written
report must contain a description of the noncompliance (i.e. the bypass) and
its cause; the period of noncompliance, including exact dates and times; if the
cause of noncompliance has not been corrected, the anticipated time it is
expected to continue; and steps taken or planned to reduce, eliminate and
prevent recurrence of the bypass event. If a complete fax or email submittal is
sent within 24 hours of the time that the permittee became aware of the
unanticipated bypass event, then that report will satisfy both the oral and
written reporting requirements.
During
the inspection conducted on April 24, 2019, IDEM’s representative documented
that Respondent’s certified operator stated that there have been numerous
overflows from three (3) points in the WWTP, which include the influent grinder
structure and aeration basins. These prohibited overflows would be considered
bypass events, which were not reported to IDEM, in violation of Part II.B.2.d.(2).
13.
Pursuant
to Part II.B.4.a of the Permit, collected screenings, slurries, and other such
pollutants shall be disposed of in accordance with provisions set forth in 329
IAC 10, 327 IAC 6.0 or another method approved by the Commissioner.
Pursuant
to Part II.B.4.b of the Permit, the permittee shall comply with existing
federal regulations governing solids disposal, and with applicable provisions
of 40 Code of Federal Regulations (CFR) Part 503, the federal sludge disposal
regulation standards.
During
the inspection conducted on April 24, 2017, IDEM’s representative observed and
documented excessive dried sludge solids outside of the aeration tank on the
ground. In addition, dried sludge solids were present on the concrete ground
the WWTP, and on the ground outside the WWTP. Respondent failed to comply with
sludge handling requirements, in violation of Part II.B.4.a of the Permit, 329
IAC 10, 327 IAC 6.0, and 40 CFR Part 503.
14.
Pursuant
to Part II.B.5.a of the Permit, in accordance with 327 IAC 5-2-10 and 327 IAC
5-2-8(14), in order to maintain compliance with the effluent limitations and
prohibitions of the Permit, the permittee shall provide an alternative power
source sufficient to operate facilities utilized by the permittee to maintain
compliance with the effluent limitations and conditions of the Permit.
During
the inspection conducted on April 24, 2019, IDEM’s representative observed and
documented the lack of an alternative power source. At the time of the
inspection, there was only one portable generator, which is shared between the
WWTP and the drinking water treatment plant (DWTP). Therefore, in the event of
a power outage at both the WWTP and the DWTP, Respondent is incapable of
supplying adequate alternative power, in violation of Part II.B.5.a of the
Permit, 327 IAC 5-2-10, and 327 IAC 5-2-8(14).
15.
Pursuant
to Part II.B.6 of the Permit, any overflow or release of sanitary wastewater
from the WWTP or collection system that results in a discharge to waters of the
State, and is not specifically authorized by the Permit, is expressly
prohibited.
During
the inspections conducted on April 24, 2017, July 26, 2018 and April 24, 2019,
and in a review of Respondent’s Bypass/Overflow Incident Reports for the period
of July 1, 2017 to October 1, 2019, it was discovered that Respondent reported
seven (7) SSOs. All of the SSOs were reported to have been caused by
precipitation events, and approximately 3,531,000 gallons of untreated
wastewater was released from Respondent’s collection system into the
environment during the seven (7) SSOs, in violation of Part II.B.6 of the
Permit.
16.
On
May 4, 2017, August 1, 2018 and May 2, 2019, IDEM
issued Inspection Summary/Noncompliance Letters to Respondent outlining
violations in the WWTP and in the collection system. The letters required a
response detailing actions Respondent was required to take to correct the
violations. IDEM received responses to the letters explaining compliance
actions Respondent took or would take to address the violations. However, the
violations noted above continue at the WWTP and in the collection system, and
Respondent has not taken steps to comply with the Permit.
17.
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 8 through 15 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 report overflows or a release of
sanitary wastewater to waters of the State, not specifically authorized by the
Permit per the reporting
requirements in Part II.C.3 of the Permit.
4.
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 the Permit, specifically including the actions Respondent will take to:
A.
Achieve and maintain compliance with effluent
limitations contained in the Permit, specifically TSS,
Ammonia, Chlorine, and E. Coli;
B.
Assure proper storage, removal, and disposal of sludge/solids;
C.
Develop and implement a preventative maintenance program
for WWTP equipment, and document all maintenance (preventative and repair) in a
permanent record;
D.
Install
adequate remote alarm system capable of alerting Respondent and its operators at
all times when there is equipment failure, and during high flows to/through
WWTP, at splitter box, aeration tank, and sludge drying bed;
E.
Evaluate collection system and implement means to
eliminate SSOs and bypasses;
F.
Develop and implement a preventative maintenance program
for collection system, which includes methods and milestone dates for locating
and eliminating sources of inflow and infiltration (I/I) in the sewer system; and
G.
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 and obtain approval of variations to the approved
CP, prior to implementation of any variations.
5.
Respondent shall, after completion of the work
required pursuant to the approved CP from Order Paragraph 4 above, demonstrate 12-consecutive
months of compliance (Compliance Demonstration) with terms and conditions of the
Permit.
6.
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 NPDES Permit. The AAP, if required, shall include an
implementation and completion schedule, including specific milestone dates.
7.
The
plans required by Order Paragraphs 4 and 6 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 (3) submissions of such plan by
Respondent, IDEM may seek civil enforcement of this Order.
8.
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 Order 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.
9.
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.
10.
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.
11.
All
submittals required by this Agreed Order, unless Respondent is notified
otherwise in writing by IDEM, shall be sent to:
Aletha
Lenahan, 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 Two Thousand, Four Hundred
Eighty Dollars ($2,480). Said penalty amount shall be paid in six (6)
consecutive monthly payments. The first payment in the amount of Four Hundred Five
Dollars ($405) shall be due and payable to the “Environmental Management
Special Fund” within 30 days of the Effective Date. The remaining amount of Two
Thousand, Seventy-Five Dollars ($2,075) shall be due in five (5) consecutive
monthly payments of Four Hundred Fifteen Dollars ($415), with the 30th
day of each month being the “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 report overflows and releases, as required. |
$400
per violation. |
4 |
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 |
6 |
Failure
to submit the AAP, if required, within the given time
period. |
$500
per week late, or part thereof. |
7 |
Failure
to modify the CP and/or AAP, if required, within the given time
period. |
$500
per week late, or part thereof. |
8 |
Failure
to meet and/or implement any milestone date set forth in the approved CP or
AAP. |
$500
per week late, or part thereof. |
9 |
Failure to submit to IDEM a written progress
report within 10 days of each milestone date OR calendar quarter. |
$150
per week late, or part thereof. |
10 |
Failure
to operate the WWTP as efficiently and effectively as possible prior to
Compliance Demonstration. |
$200
per violation. |
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 2019-26618-W of this action and shall be mailed to:
Indiana
Department of Environmental Management |
Accounts
Receivable |
IGCN, Room N1340 |
100 N. Senate
Avenue |
Indianapolis,
IN 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 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.
17.
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.
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 Colfax |
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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 July 15, 2020 |
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Martha
Clark Mettler |
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Assistant
Commissioner |
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Office
of Water Quality |