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.

City of Covington,

Respondent.

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Case No. 2020-26840-W

 

AGREED ORDER

 

Complainant and Respondents 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.

 

City of Covington (Respondent) owns and operates a wastewater treatment facility, located at 108 South River Road, Covington, Fountain County, Indiana (the Site).

 

2.               Respondent is authorized by its National Pollutant Discharge Elimination System (NPDES) Permit No. IN0025828 (the Permit), to discharge wastewater treated in accordance with the terms and conditions of the NPDES Permit from its Wastewater Treatment Plant (WWTP) into Wabash River from Outfall 001.

 

3.               IDEM has jurisdiction over the parties and the subject matter of this action pursuant to IC 13-30-3.

 

4.               Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation (NOV) via Certified Mail/personal service to:

 

Bradley Crain, Mayor

Greg Meyers, Operator

City of Covington

Covington Wastewater Treatment Plant

PO Box 248

108 South River Road

1329 2nd Street

Covington, IN  47932

Covington, IN  47932

 

 

5.               During an investigation, including an inspection on July 1, 2019, conducted by a representative of IDEM, violations were found as described below.

 

6.               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 Indiana Code (IC) 13 and is grounds for enforcement action by IDEM.

 

7.               Pursuant to 327 IAC 3-2-1.5 and Part II. A. 15 of the Permit, 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.

 

Pursuant to 327 IAC 5-2-8(9) and Part II. B. 1 of the permit, the permittee shall at all times maintain in good working order and efficiently operate all facilities and systems (and related appurtenances, i.e., equipment used for measuring and determining compliance) for collection and treatment that are: installed or used by the permittee; and necessary for achieving compliance with the terms and conditions of the permit.

 

 On July 1, 2019, IDEM determined that Respondent had removed the synthetic liner from the equalization basin (EQ) and that the equalization basin (EQ) was no longer operational.  The City reported that the EQ was no longer in operation or maintained.  The inspection report stated that solids had not settled well in the wastewater treatment plant and were observed to have overflowed the clarifier and weir.  The decommissioning of the equalization basin was conducted without a permit or even submitting an application for a permit and led to solids passing through of the wastewater treatment plant, in violation of 327 IAC 3-2-1.5, 327 IAC 3-2-2, Part II. A. 15 of the Permit, 327 IAC 5-2-8(9), and Part II. B. 1 of the Permit.

 

8.               On July 11, 2019, an Inspection Summary Noncompliance Letter was sent to the Respondent. A response letter was received from the Respondent dated August 5, 2019.  The response letter was deemed insufficient to address the violations identified in the Noncompliance letter.  On August 12, 2019, an Insufficient Response Letter was sent to the Respondent stating the reasons why the response from the Respondent was deemed insufficient. The violations noted above continue at the WWTP.

 

9.               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 Paragraph 7 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 60 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:

    1. Reinstall the equalization basin, liner, and the automated mechanism to direct the flow to the equalization basin.

 

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 or modified 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 4 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 WWTP as efficiently and effectively as possible.

 

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

 

Patrick Colcord, Enforcement Case Manager

Office of Water Quality – IGCN 1255

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

11.           Respondent is assessed and agrees to pay a civil penalty of Two Thousand Six Hundred Twenty Five Dollars ($2,625). 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.”

 

12.           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.

4

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 WWTP as efficiently and effectively as possible prior to Compliance Demonstration.

$200 per violation.

 

13.           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.

 

14.           Civil and stipulated penalties are payable by check to the “Environmental Management Special Fund.” Checks shall include the Case Number 2020-26840-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

 

15.           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.

 

16.           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.

 

17.           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.

 

18.           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.

 

19.           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.

 

20.           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.

 

21.           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.

 

22.           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.

 

23.           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

City of Covington

 

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 October 9, 2020

 

Martha Clark Mettler

 

Assistant Commissioner

 

Office of Water Quality