HomeMy WebLinkAboutRevised Proposed Agreed Order Case No. 2011-20176 IDEM INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT
We Protect Hoosiers and Our Environment.
Mitchell E. Daniels, r
v �+ f- l • 100 North Senate Avenue
Governor October 5, 2011 Indianapolis, Indiana 46204
` - fi t' (317) 232 -8603
v / Thomas W. Eagerly Toll Free (800) 451 -6027
Commissioner www.idem.IN.gov
VIA CERTIFIED MAIL.# 91 7190 0005 2710 0017 0187 LECEIVED
Ced4 -i -Red crvi_e.;
The City of Jeffersonville 111:1 11 2011
The Honorable Tom Galligan, Mayor
Suite 250, City Hall MAY R
500 Quartermaster Court ICtny OFF asri rtFFEft1LL neetwa
Jeffersonville, IN 47130 0
Dear Mayor Galligan:
Re: Revised Proposed Agreed Order
City of Jeffersonville
NPDES IN0023302
Case No. 2011 -20176
Jeffersonville, Clark County
Qualified offer of settlement: inadmissible pursuant to Rule 408 of the Ind. Rules of
Evidence. IDEM asserts that any offer to compromise a claim or any acceptance of
such offer does not bind or obligate the parties of this enforcement action in the
absence of a final order of the agency.
Enclosed please find the revised proposed Agreed Order that provides for the
actions required to correct the violations outlined in IDEM's Notice of Violation issued to
the City of Jeffersonville in the above referenced case dated June 20, 2011. This revised
proposed Agreed Order takes into consideration the information discussed at our July 12,
2011, meeting, and your August 24, 2011, submittal. The civil penalty noted in the
proposed Agreed Order is for settlement purposes and takes into consideration the
corrective actions that the City has taken and includes a reduction for quick settlement
through this Agreed Order.
Entering into and timely compliance with the enclosed Agreed Order will constitute
resolution of this case. If you have any further modifications to the proposed Agreed
Order that you would like to submit for IDEM's consideration, please submit any such
proposed modifications within 20 days. If you are willing to resolve this matter as
provided for in the enclosed Agreed Order, sign and return the entire document to me at
the following address within 20 days of your receipt:
IDEM Office of Water Quality CEI
Surface Water, Operations & Enforcement Branch WED
Water Enforcement Section, Mail Code 60 -02W OCT 1 2
100 N. Senate Ave. 2O }1
Indianapolis, IN 46204 -2251
Ne,pl.,ll4( :r a Ar i p' Iu,,:u t,niaoyi, Prof, x„yrn 0
Proposed Agreed Order Cover Letter
Case No. 2011-20176-W
• City of Jeffersonville
NPDES Permit No, IN0023302
Page 2
If this matter can not be resolved through the enclosed Agreed Order or a mutually
acceptable revised Agreed Order, a Commissioner's Order may be issued. It should be
understood that the civil penalty for purposes of a Commissioner's Order will be
assessed pursuant to IDEM's Civil Penalty Policy adopted as a Nonrule Policy Document
on April 5, 1999.
If you have any questions regarding the proposed Agreed Order, please contact
me as soon as possible at (317)232 -8433. Thank you for your cooperation in this matter.
Sincerely,
Terry A. Ressler, Case Manager
Water Enforcement Section
Surface Water, Operations &
Enforcement Branch
Office of Water Quality
Enclosure
IDEM INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT
' ro iM We Protect Hoosiers and Our Environment.
Miwrbr!! Danith. Jr. 100 North Senate Avenue
Govemor Indianapolis. Indiana 46204
(317)232 -6603
C o W Lured) Toll Free (600) 451 -6027
Commissioner vnvw.idem. IN.gov
STATE OF INDIANA ) SS: BEFORE THE INDIANA DEPARTMENT OF
ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION )
COMMISSIONER OF THE DEPARTMENT )
OF ENVIRONMENTAL MANAGEMENT. )
)
Complainant, )
)
v. ) Case No. 2011 - 20176 -W
)
CITY OF JEFFERSONVILLE, )
Respondent. )
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. Respondents 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. Respondent is the City of Jeffersonville (Respondent), which owns and operates a
major municipal wastewater treatment plant and sewer collection system, including the
sanitary sewer located at Springdale Drive east of Tenth Street, in Jeffersonville, Clark
County, Indiana (the Site).
Li Equal Onion': nu). Lapin.. r t!
Agreed Order, Case No. 2011- 20176•W
City of Jeffersonville
NPDES Permit No. IN0023302
Page No. 2
3. Respondent is authorized by the NPDES Permit Number IN 0023302 (Permit) to
discharge wastewater treated in accordance with the terms and conditions of the
NPDES Permit.
4. IDEM has jurisdiction over the parties and the subject matter of this action.
5. Pursuant to IC 13- 30 -3 -3, IDEM issued a Notice of Violation (NOV) on June 20, 2011,
via Certified Mail to the City of Jeffersonville.
6. Pursuant to 327 IAC 5- 2 -8(1) and Part II.A.1 of the Permit, Respondent is required to
comply with all terms and conditions of its NPDES Permit.
Pursuant to Part 11.13.15 of the Permit, Respondent shall not construct, install, or modify
any water pollution treatment/control facility as defined in 327 IAC 3- 1- 2(24), except in
accordance with 327 IAC 3.
Pursuant to IAC 3- 1- 2(24), water pollution treatment/control facility means any
equipment, device, unit, or structure at a site that is used to control, prevent, pretreat, or
treat any discharge or threatened discharge of pollutants into any waters of the state of
Indiana including public or private sewerage systems.
Pursuant to 327 IAC 3- 2 -1.5, 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(d), construction of a water pollution treatment/control facility
or sanitary sewer shall not commence until all necessary state approvals and permits
are obtained.
On June 24, 2010, IDEM received information that a gravity sanitary sewer had been
constructed at the Site.
On June 29, 2010, IDEM was informed by Respondent that a construction permit had
not been issued for the gravity sanitary sewer at the Site.
On June 29, 2010, IDEM received a diagram of the sanitary sewer that had been
constructed from Respondent.
On June 30, 2010, IDEM informed Respondent that it should have obtained a
construction permit for the construction of the sewer at the Site, because the diagram
that IDEM had received from Respondent indicated that the new sewer that was built
parallel to an existing sewer was increased in size from the existing 8 inch diameter
•
Agreed Order, Case No. 2011.20176 -W
City of Jeffersonville
NPDES Permit No. IN0023302
Page No. 3
sewer to a 12 -inch diameter sewer. IDEM informed Respondent that since the new
sewer at the Site (Springdale Sewer Replacement) had already been constructed, it
needed to submit an application for a Non- Objection -Letter from IDEM.
Respondents construction, installation, or modification of a water pollution
treatmenticontrol facility without a valid construction permit is in violation of
327 IAC 3- 2 -1.5, 327 IAC 3- 2 -2(d), Part 11.13.15 of the Permit, 327 IAC 5- 2 -8(1) and Part
II.A.1 of the Permit.
7. Pursuant of 327 IAC 3 -3 -1, if the commissioner determines it is necessary to review the
as -built plans for a project requiring a construction permit, the applicant shall submit
those plans upon request. The commissioner shall approve or disapprove those plans
not more than 30 days after they have been submitted.
On March 1, 2011, Respondent submitted an `as- built" application for the Springdale
Sewer Replacement project at the Site.
On March 10, 2011, IDEM issued a Deficiency Notice for the Springdale Sewer
Replacement at the Site, which notified Respondent that IDEM disapproved its "as -built
application. Respondent has not obtained IDEM approval of Respondent's plans for the
Springdale Sewer Replacement project at the Site.
8. On August 24, 2011, Respondent submitted a response to the NOV in which
Respondent indicated that it will submit As -built plans and specifications and a
completed construction permit application for the Springdale Sewer Replacement
project and submit the results of any and all tests required by the construction permitting
process. Respondent also indicated that it is taking every action necessary to assure
that the events that occurred during the Springdale Sewer project will not occur in the
future, including:
A. Installing a backflow (backwater) valve on each of the residential connections at
the Springdale Sewer Project and either installing or requiring installation of
backwater valves on all lateral repairs that are in or close to City right -of way;
• B. Revisions to its Sanitary Sewer Standards for the construction of new sanitary
sewers and lateral connections to the City sewers are being made and are
scheduled to be completed by the end of 2011;
C. Purchasing and utilizing Cartegraph software to track all collection system work
orders and maintenance activities, and mapping all sewers in Arc GIS and
incorporating them into the Cartegraph software;
D. Completing the Mill Creek Pump Station Replacement project which is now in full
operation. This project increased the lift station's capacity and is intended to
Agreed Order, Case No. 2011 - 20176 -W
• City of Jeffersonville
NPDES Permit No. IN0023302
Page No. 4
Ir eliminate any potential sewer back up problems such as those that may have
occurred in the past with sewers tributary to the Mill Creek Pump Station.
E. Constructing a new North WWTP as part of its Long Term Control Plan to
address capacity issues. Construction on this project should start on or before
December 2011.
9. In recognition of the settlement reached, 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
Complainant or Complainant's delegate, and has been received by Respondent. This
Agreed Order shall have no force or effect until the Effective Date.
2. Respondent shall comply with the rules and permit conditions listed in the findings
above at issue.
3. Within 30 days of the Effective Date, Respondent shall submit to IDEM, for review, as-
built plans and specifications and a completed construction permit application for the
Springdale Sewer Replacement project at the Site.
4. In the event that IDEM determines that the as -built plans and specifications or the •
construction permit application submitted pursuant to Paragraph 3 above is inadequate
and that the inadequacies may be addressed by the submittal of additional information,
Respondent shall, within 60 days of receiving written notification from IDEM, submit to
IDEM information and /or revised plans and /or specifications, as necessary to address
the deficiencies.
5 In the event that IDEM determines that:
A. the as -built plans and specifications or the construction permit application
submitted pursuant to Paragraph 3 & 4 above are deficient and that the
deficiencies may not be addressed by the submittal of additional information: or
B. the inadequacies identified pursuant to Paragraph 3 & 4 above have not been
timely or adequately addressed,
Respondent shall, within 30 days of receiving notification from IDEM, submit a complete
construction permit application to IDEM, including plans and specifications. for
modifying, repairing, or replacing the sanitary sewer lines, as necessary to ensure
compliance with the applicable technical standards specified in 327 IAC 3.
•
Agreed Order, Case No. 2011- 20176 -W
City of Jeffersonville
NPDES Permit No. IN0023302
Page No. 5
6. The Respondent shall initiate construction within 30 days of receiving a construction
permit from IDEM for reconstructing the sanitary sewer at the Site (the "construction
permit "), complete construction within 60 days of receiving the construction permit, and
conduct the tests specified in 327 IAC 3 -6 -19 on the sewer at the Site within 45 days of
completion of the construction.
7. The Respondent shall conduct the construction required pursuant to Paragraph 6
above, in accordance with the terms and conditions of the construction permit, the
accompanying approved plans and specifications, and the applicable provisions of 327
IAC 3.
8. In the event that IDEM determines that the as -built plans and specifications and the
construction permit application submitted pursuant to Paragraph 3 & 4 above are
satisfactory, Respondent shall, within 45 days of receiving written notification from
IDEM, conduct the tests specified in 327 IAC 3-6-19 on the Springdale Sewer
Replacement at the Site.
9. Respondent shall conduct the tests required pursuant to Paragraph 6 or 8 above in
accordance with the requirements of 327 IAC 3 -6 -19.
10. Respondent shall provide IDEM, at least 15 days prior to conducting the tests (that had
not already been performed) required pursuant to Paragraph 6 or 8 above or the
retest(s) required pursuant to Paragraph 12 below, with written notification of the date(s)
and time(s) that the test(s) or retest(s) will be conducted. If Respondent fails to notify
IDEM at least 15 days prior to conducting the tests and the televising, IDEM may
require Respondent to re- conduct the tests.
11. Respondent shall submit to IDEM, for review, written results of the tests (that had not
already been completed) required pursuant to Paragraph 6 or 8 above or the retest(s)
required pursuant to Paragraph 12 below, within 10 days of completion of each test or
retest.
12. In the event that IDEM determines that results of any of the tests or the retests
submitted pursuant to Paragraph 6 or 8 above are unsatisfactory, the Respondent shall,
within 15 days of receiving notification from IDEM, make all necessary repairs and shall,
within 45 days of receiving notification from IDEM, conduct all retest(s) on the
reconstructed sewer at the Site, as specified by IDEM.
13. The Respondent shall, immediately upon the Effective Date, ensure that overflows
(including backups of sewage into basements) or discharges of sewage from the
sanitary sewer at the Site into the environment do not occur at any time, including
during the period of construction required pursuant to Paragraph 6 above.
Agreed Order, Case No. 2011 - 20176 -W
City of Jeffersonville
NPDES Permit No. 1140023302 •
Page No. 6
14. All submittals required by this Agreed Order, unless notified otherwise in writing, shall
be sent to:
Don Worley, Senior Environmental Manager
IDEM, Office of Water Quality
Facilities Construction and Engineering Support Section
Mail Code 65 -42
100 N. Senate Avenue, Room N1255
Indianapolis, IN 46204 -2251
And
Terry Ressler, Enforcement Case Manager
Indiana Department of Environmental Management
Surface Water, Operations & Enforcement Branch
Office of Water Quality — Mail Code 60 -02W
100 North Senate Avenue, Room 1255
Indianapolis, IN 46204 -2251
15. Respondent is assessed and agrees to pay a civil penalty of Five Thousand Dollars
($5,000). Said penalty amount shall be due and payable to the Environmental
Management Special Fund within 30 days of the Effective Date, the 30 day being the
"Due Date ". In the event that the civil penalty is not paid within 30 days of the Effective
Date, 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.
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 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. Such interest
shall be payable to the Environmental Management Special Fund, and shall be payable
to IDEM in the manner specified above.
16. In the event the terms and conditions of the following paragraphs are violated,
Complainant may assess and Respondent shall pay a stipulated penalty in the following
amount:
Paragraph I Violation Stipulated Penalty
•
3 ' Failure to submit as -built plans and specifications and $500 per day late
a completed construction permit application in the
timeframe required.
4 Failure to submit information to IDEM in the timeframe $500 per day late I
required.___ �`
Agreed Order, Case No. 2011 - 20176 -W
City of Jeffersonville
NPOES Permit No. 1N0023302
Page No. 7
5 Failure to submit a complete construction permit $500 per day late
application to IDEM in the timeframe required.
6 Failure to initiate construction, complete construction $500 per day late
or conduct the tests by the timeframes required.
7 Failure to conduct the construction as required. $5,000 per violation
8 Failure to conduct the tests in the timeframe required. $500 per day late
9 Failure to conduct the tests in accordance with the $5,000 per violation
requirements of 327 IAC 3-6-19.
10 Failure to provide required written notification to IDEM $500 per day late
in the timeframe required.
11 Failure to submit written test results in the timeframe $500 per day late
required.
12 Failure to make all necessary repairs and/or failure to $500 per day late
conduct all retest(s).
13 Overflow or discharge of sewage from the sanitary $5,000 per violation
sewer at the Site.
17. Stipulated penalties shall be due and payable no later than the 30 day after
Respondent receives written notice that Complainant has determined a stipulated
penalty is due; the 30 day being the 'Due Date." Complainant 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 Complainant's right to
collect such stipulated penalty or preclude Complainant from seeking additional relief
against Respondent for violation of this Agreed Order. Neither assessment nor
payment of stipulated penalties shall - preclude Complainant 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.
18. Civil and stipulated penalties are payable by check to the "Environmental Management
Special Fund." Checks shall include the Case Number of this action and shall be
mailed to:
Indiana Department of Environmental
Management
Cashier — Mail Code 50 -10C
100 North Senate Avenue
Indianapolis, IN 46204 -2251
19. This Agreed Order shall apply to and be binding upon Respondent and 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.
Agreed Order. Case No. 2011- 20176 -W
City of Jeffersonville
NPDES Permit No. IN0023302 •
Page No. 8
20. 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.
21. 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.
22. 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.
23. Complainant does not, by its 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 Respdndent's
efforts to comply with this Agreed Order.
24. 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 NOV.
25. Nothing in this Agreed Order shall prevent IDEM [or anyone acting on its behalf] from
communicating with the 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 EPA or any other agency or entity.
26. This Agreed Order shall remain in effect until Respondent has complied with all terms
and conditions of Order Paragraph Nos. 3 through 18 and IDEM issues a Resolution of
Case letter.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
Agreed Order. Case No. 2011- 20176 -W
• City of Jeffersonville
NPDES Permit No. IN0023302
Page No. 9
TECHNICAL RECOMMENDATION: RESPONDENT:
Department of Environmental City of Jeffersonville
Management
By: By:
Mark W. Stanifer, Ch' f
Water Enforcement Section Printed:
Office of Water Quality
Title:
Date: � 3.2°1) Date:
COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:
For the Department of Environmental
Management Ai r
By: i By:
Deputy Att. : r erai
Date: 1 /2(72.6 !( Date:
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT DAY OF , 20 _ .
THIS
For the Commissioner:
Bruno Pigott
Assistant Commissioner
Office of Water Quality