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STATE OF |
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BEFORE THE INDIANA
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COMMISSIONER OF THE
DEPARTMENT Complainant, v. TOWN OF Respondent. |
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The Complainant and the
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 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 the
Respondent may have in any future administrative or judicial proceeding, except
a proceeding to enforce this order.
I. FINDINGS OF FACT
1.
The Complainant is the Commissioner (Complainant) of the
Indiana Department of Environmental Management, a department of the State of
2.
The Respondent is the Town of Speedway (Respondent), which
operates a publicly owned treatment works (POTW) comprised of a combined storm
and sanitary sewer collection system and a 7.5 MGD activated sludge wastewater
treatment plant (WWTP), located at 4251 West Vermont Street, in Marion County,
Indiana, (Site).
3.
The Respondent’s NPDES permit No. IN0032972 (the Permit),
effective November 1, 2001, authorizes the Respondent to discharge from the
WWTP Outfall 001 to receiving waters named Lower Eagle Creek in accordance with
the effluent limitations, monitoring requirements, and other conditions set
forth in the Permit.
4.
The Indiana Department of Environmental Management (IDEM)
has jurisdiction over the parties and subject matter of this action.
5.
Pursuant to IC 13-30-3-3, IDEM issued on March 21, 2006, a
Notice of Violation (NOV), via Certified Mail to Lu Hillmer, President,
Speedway Town Council.
6.
Record reviews were conducted at the site on the dates
specified below by a representative of IDEM’s Office of Water Quality
(OWQ). The violations described in the
following paragraphs were in existence or observed at the time of these record
reviews, and were cited in the NOV.
7.
Pursuant to 327
8.
Pursuant to 327 IAC 5-2-8(1), Part II.A.1 of the Permit, 327
IAC 5-2-8(8), and Part II.B.1 of the Permit, the Respondent is required to, at
all times, maintain in good working order and efficiently operate all waste
collection, control, treatment, and disposal facilities.
9.
Part I.A.1 of the Permit contains the final effluent
limitations applicable to the discharge from the Respondent’s WWTP at Outfall
001 to Lower Eagle Creek.
Discharge Monitoring
Reports and Monthly Reports of Operation submitted by the Respondent to IDEM
for the period between May 2004 and August 2005 reveal that the Respondent
failed to meet final effluent limitations contained in Part I.A.1 of the Permit
as follows:
The weekly maximum and/or monthly average
concentration effluent limitations for Ammonia Nitrogen (NH3) were exceeded in
May, June, July, and December of 2004; and March, April, May, June, and August
of 2005.
The weekly maximum and/or monthly average
concentration effluent limitations for Total Suspended Solids (TSS) were
exceeded in May, June, November, and
December of 2004.
The daily maximum effluent limitation for
E.coli were exceeded in April, June, July, and August of 2005.
The Respondent's failure to meet effluent
limitations contained in the Permit is in violation of 327 IAC 5-2-8(1), Part
II.A.1 of the Permit, Part I.A.1 of the Permit, 327 IAC 5-2-8(8), and Part II.B.1 of
the Permit.
10.
Pursuant to 327 IAC 5-2-8(10)(D) and Part II.C.4 of the
Permit, the Respondent shall report noncompliance at the time the Discharge
Monitoring Reports are submitted to IDEM.
The written noncompliance submission must include a description of the
noncompliance and its cause; the period of noncompliance, including exact dates
and times, and if the 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 noncompliance.
11.
The Respondent failed to report, at the time of submitting
the Discharge Monitoring Reports to IDEM for a few of the months that effluent
violations occurred, the steps taken or planned by the Respondent to reduce,
eliminate and prevent the instances of noncompliance. Such failure to report is in violation of 327
IAC 5-2-8(10)(D) and Part II.C.4 of the Permit.
The Respondent did provide a summary of the ammonia treatment problems
in controlling the thickness of the moss-like growth on the fixed film
bio-towers in October 2004, and in March, April and May 2005, including a
comment of high ammonia concentration in the belt press filtrate. To address E.coli noncompliance, the
Respondent did provide multiple comments that the chlorine dosage was being
increased and sampling and laboratory procedures were being reviewed.
12.
In recognition of the settlement reached, the 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 approved by the Complainant or his delegate, and has been received by the
Respondent. This Agreed Order shall have
no force or effect until the Effective Date.
2.
The Respondent shall comply with 327 IAC 5-2-8(1), 327 IAC
5-2-8(8), 327 IAC 5-2-8(10)(D) and Parts I.A.1, II.A.1, II.B.1, II.B.2, and
II.C.4 of the Permit.
3.
Beginning on the Effective Date of this Agreed Order, and
continuing until implementation of the Compliance Plan required pursuant to
Order Paragraph 4 is complete, the Respondent shall, at all times, operate its wastewater
treatment facility as efficiently and effectively as possible.
4.
Within 120 days of the Effective Date of this Agreed Order,
the Respondent shall develop and submit to IDEM for its approval a compliance
plan (CP) that includes, but is not limited to, the following:
A.
A description of the actions that the Respondent will take and
management systems that the Respondent will develop and implement to achieve
and maintain continuous compliance with all terms and conditions contained in
the Permit. Such actions shall include,
but not be limited to evaluation of the wastewater treatment process,
evaluation of alternatives for improving and enhancing the treatment to improve
effluent quality, and routine operation and maintenance of the treatment
facilities.
B.
A schedule for initiation and completion of all actions
described in the CP, including specific milestone dates.
5.
The Respondent shall, within 12 months of the completion of
the portion of the CP required by Order Paragraph 4 (Performance Period),
demonstrate compliance with effluent limitations for a period of 11 consecutive
months. In the event that noncompliance
with Permit effluent limitations occurs during the Performance Period, the
Respondent shall, within 60 days of becoming aware of the noncompliance, submit
to IDEM for its approval, an Additional Effluent Limitation Compliance Plan,
that includes a description of the additional actions that the Respondent will
take to achieve and maintain compliance with the permit effluent limitations
and a schedule, including specific milestone dates for initiating and
completing such actions.
6.
The plans required by Order Paragraphs 4 and 5 are subject
to IDEM approval. In
the event that IDEM determines any plan to be deficient or otherwise
unapprovable, the Respondent shall, upon written notice by IDEM, revise and
resubmit the plan, in accordance with IDEM’s written notice. If, after three submissions of the plan by
the Respondent, IDEM finds the plan to be deficient or otherwise unapprovable,
IDEM may require the Respondent to revise and resubmit the plan, or
alternatively, may modify and approve the plan, in which case the Respondent
shall implement the plan as modified and approved by IDEM.
7.
Upon approval by IDEM, any plan required pursuant to this
Agreed Order shall be incorporated into the Agreed Order and shall
be deemed an enforceable part thereof.
The Respondent, upon receipt of written approval from IDEM, shall immediately
implement the approved plan and adhere to the schedule contained therein.
8.
The Respondent shall notify IDEM, in
writing, within 10 days of completion of each action or milestone contained in
any plan approved by IDEM pursuant to this Agreed Order. The notification shall
include a description of the action completed and the date it was completed.
9.
All submittals required by this Agreed Order, unless
notified otherwise in writing, shall be sent to:
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Paul Cluxton, Enforcement Case Manager |
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Indiana Department of Environmental Management |
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Office of Enforcement – Mail Code 60-02 |
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10.
The Respondent is assessed a civil penalty of Three
Thousand ($3,000) Dollars. Said penalty amount shall be due and payable
to the Environmental Management Special Fund within 30 days of the Effective
Date.
11.
In the event the terms and conditions of the following Order
paragraphs are violated, the Complainant may assess and the Respondent shall
pay a stipulated penalty in the following amount:
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Order Paragraph Number |
Violation
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Penalty Amount |
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4 |
Failure
to submit the CP, as required. |
$250 per each week or
part thereof late |
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5 |
Failure
to comply with effluent limitations subsequent to completion of
implementation of the portion of the CP required pursuant to Order Paragraph
4. |
$500 per violation |
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5 |
Failure
to submit Additional Compliance Plan, if required. |
$250 per each week or
part thereof late |
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6 |
Failure
to revise and resubmit any plan required pursuant to this Agreed Order, as
required. |
$250 per each week or
part thereof late |
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7 |
Failure
to implement an approved plan, or to meet any milestone date set forth in any
approved plan. |
$500 per each week or
part thereof late |
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8 |
Failure
to notify IDEM, in writing, within 10 days of completion of each action
contained in the approved action plan. |
$250 per each week or part thereof late |
12.
Stipulated penalties shall be due and payable within 30 days
after the Respondent receives written notice that the Complainant has determined
a stipulated penalty is due. Assessment
and payment of stipulated penalties shall not preclude the Complainant from
seeking any additional relief against the Respondent for violation of the
Agreed Order. In lieu of any of the
stipulated penalties given above, the Complainant may seek any other remedies
or sanctions available by virtue of the Respondent's violation of this Agreed
Order, or
13.
Civil and stipulated penalties are payable by check to the
Environmental Management Special Fund.
Checks shall include the Case Number (2005-15283-W) of this action and
shall be mailed to:
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Indiana Department of
Environmental Management |
Cashiers Office – Mail Code
50-10C
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14.
In the event that the civil penalty required by Order
Paragraph 10, is not paid when due, the Respondent shall pay interest on the
unpaid balance at the rate established by IC 24-4.6-1-101. The interest shall continue to accrue until
the civil penalty is paid in full.
15.
This Agreed Order shall apply to and be binding upon the
Respondent, its successors, and assigns.
The Respondent's signatories to this Agreed Order certify that they are
fully authorized to execute this document and legally bind the parties they
represent. No change in ownership,
corporate, or partnership status of the Respondent shall in any way alter its
status or responsibilities under this Agreed Order.
16.
In the event that any terms of the 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 the Agreed Order did not contain the invalid
terms.
17.
The Respondent shall provide a copy of this Agreed Order, if
in force, to any subsequent owners or successors before ownership rights are
transferred. The Respondent shall ensure
that all contractors, firms and other persons performing work under this Agreed
Order comply with the terms of this Agreed Order.
18.
"Force Majeure" for purposes of this Agreed Order,
is defined as any event arising from causes totally beyond the control and
without fault of the Respondent that delays or prevents the performance of any
obligation under this Agreed Order despite Respondent’s best efforts to fulfill
the obligation. The requirement that the
Respondent exercise "best efforts to fulfill the obligation" includes
using best efforts to anticipate any potential force majeure event and best
efforts to address the effects of any potential force majeure event (1) as it
is occurring and (2) following the potential force majeure event, such that the
delay is minimized to the greatest extent possible. "Force Majeure" does not include
changed business or economic conditions, financial inability to complete the
work required by this Agreed Order, or increases in costs to perform the work..
The Respondent shall notify IDEM by calling the case
manager within three (3) calendar days and by writing no later than seven (7)
calendar days after it has knowledge of any event which the Respondent contends
is a force majeure. Such notification
shall describe the anticipated length of the delay, the cause or causes of the
delay, the measures taken or to be taken by the Respondent to minimize the
delay, and the timetable by which these measures will be implemented. The Respondent shall include with any notice
all available documentation supporting its claim that the delay was
attributable to a force majeure. Failure
to comply with the above requirements shall preclude Respondent from asserting
any claim of force majeure for that event.
The Respondent shall have the burden of demonstrating that the event is
a force majeure. The decision of whether
an event is a force majeure shall be made by IDEM.
IDEM agrees that, if a delay is attributable to a
force majeure, IDEM shall extend, in writing, the time period for performance
under this Agreed Order, by the amount of time that is directly attributable to
the event constituting the force majeure.
19.
This Agreed Order shall remain in effect until the
Respondent complies with the terms of Order Paragraphs 3 through 14 and until
IDEM issues a Close-Out letter to the Respondent.
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TECHNICAL RECOMMENDATION: |
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RESPONDENT: |
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Department of Environmental Management |
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Town of |
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Mark W. Stanifer, Chief |
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Water Enforcement Section |
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Office of Enforcement |
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COUNSEL FOR COMPLAINANT: |
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COUNSEL FOR RESPONDENT: |
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Department of Environmental Management |
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Office of Legal Counsel |
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Date: |
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APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF
ENVIRONMENTAL |
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MANAGEMENT THIS |
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DAY OF |
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For The Commissioner: |
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Signed on May 17, 2006 |
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Matthew T. Klein |
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Assistant Commissioner for |
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Compliance and Enforcement |
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