STATE OF INDIANA

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SS:

BEFORE THE INDIANA DEPARTMENT OF

 

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ENVIRONMENTAL MANAGEMENT

COUNTY OF MARION

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COMMISSIONER OF THE DEPARTMENT

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OF ENVIRONMENTAL MANAGEMENT,

)

 

 

)

 

Complainant,

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)

 

v.

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Case No.  2017-24567-D

 

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ALBION BOWL, INC.,

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)

 

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.             Respondent is Albion Bowl, Inc. (Respondent) who owns and operates a transient non-community public water supply (PWS) system with PWSID No. IN2570018, serving 63 persons.  The PWS system is located at 4010 North SR 9, in Albion, Noble County, Indiana (the Site).

 

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 to Albion Bowl, Inc.

 

5.             Pursuant to 327 Indiana Administrative Code (IAC) 8-2-2, each public water system shall comply with all provisions of this rule and 327 IAC 8-2.1.

 

6.             40 Code of Federal Regulations (CFR) Part 141, Subpart Y (Revised Total Coliform Rule), was incorporated in a State emergency rule on February 10, 2016 (LSA #16-87E), which was effective February 12, 2016 through May 12, 2016. The State emergency rule was readopted May 12, 2016, August 11, 2016, and November 9, 2016. The applicable rule was incorporated into Indiana rules through the regular rulemaking process and became effective February 17, 2017. The federal Revised Total Coliform Rule is effective and applicable as adopted at 327 IAC 8-2.4-1.

 

7.             Pursuant to 40 CFR 141.853(a), all PWS systems must develop a written site sampling plan that identifies a sample collection schedule and sampling sites that are representative of water throughout the distribution system not later than March 31, 2016.  These plans are subject to State review and revision.  Systems must collect total coliform samples according to the written site sampling plan.  Monitoring required by 40 CFR 141.854 through 40 CFR 141.858 may take place at a customer’s premise, dedicated sampling station, or other designated compliance sampling location.  Routine and repeat sample sites and any sampling points necessary to meet the requirements of subpart S must be reflected in the site sampling plan.

 

IDEM records indicate that Respondent failed to submit a site sampling plan by March 31, 2016, and IDEM has not received a site sampling plan from Respondent to date, in violation of 40 CFR 141.853(a).

 

8.             Pursuant to 40 CFR 141.860(c)(1), failure to take every required routine or additional routine sample in a compliance period is a monitoring violation.

 

9.             Pursuant to 40 CFR 141.854(b), a non-community PWS system using ground water only and serving 1,000 or fewer people must monitor for total coliform each calendar quarter that the system provides water to the public.

 

IDEM records indicate Respondent failed to collect at least one total coliform sample from the PWS system during the third and fourth quarters of 2016, in violation of 40 CFR 141.854(b).

 

10.         Pursuant to 40 CFR 141.854(f)(4), a PWS system on quarterly monitoring that has two subpart Y monitoring violations or one subpart Y monitoring violation and a Level 1 assessment under the provisions of 40 CFR 141.859 in a rolling 12-month period must begin monthly monitoring the month following the event. The PWS system must continue monthly monitoring until the requirements in paragraph (g) of this section are met.

 

Respondent had two subpart Y monitoring violations in a rolling 12-month period, and was required to begin monthly monitoring for total coliform during March 2017.  Respondent failed to collect at least one total coliform sample during March, April, May, June, and July 2017, in violation of 40 CFR 141.854(f)(4).

 

11.         Pursuant to 40 CFR 141.861(a)(4), a system that has failed to comply with a coliform monitoring requirement must report the monitoring violation to the State within 10 days after the system discovers the violation, and notify the public in accordance with 40 CFR 141 subpart Q.

 

IDEM records indicate that Respondent failed to notify persons served by the PWS system of the failure to collect at least one total coliform sample from the PWS system, required pursuant to 40 CFR 141.854(b) and 40 CFR 141.854(f)(4), during the third and fourth quarters of 2016 and March, April, May, June, and July of 2017; each in violation of 40 CFR 141.861(a)(4).

 

12.         Pursuant to 327 IAC 8-2-4.1(f), all PWS systems shall monitor nitrate to determine compliance with the maximum contaminant level (MCL) for nitrate.

 

IDEM records indicate that Respondent failed to monitor its PWS system for nitrate during 2015 and 2016; in violation of 327 IAC 8-2-4.1(f).

 

13.         Pursuant to 327 IAC 8-2.1-7, the owner or operator of a PWS system which fails to perform monitoring required pursuant to 327 IAC 8-2-4.1(f) is required to notify persons served by the PWS system, in the manner provided for in these rules, of such failure.

 

IDEM records indicate that Respondent failed to notify persons served by its PWS system of the failure to perform nitrate monitoring required pursuant to 327 IAC 8-2-4.1(f) during 2015 and 2016, in violation of 327 IAC 8-2.1-7.

 

14.         A Commissioner’s Order was issued to Respondent on August 2, 2018 and hand-delivered to Respondent on November 11, 2018.

 

15.         On December 18, 2018, IDEM received a phone call from Respondent. Respondent is willing to comply with all Order requirements. A signed Agreed Order will supersede the Commissioner’s Order.

 

16.         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 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 7-11 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.             Within 10 days of the Effective Date, Respondent shall develop and submit to IDEM for review a site sampling plan which identifies sampling sites and a sample collection schedule that are representative of water throughout the distribution system.  The site sampling plan is subject to IDEM approval, in the event IDEM finds the site sampling plan submitted by Respondent deficient, Respondent shall revise and resubmit the plan, in accordance with IDEM’s notification(s).

 

Respondent, upon receipt of written notification from IDEM, shall immediately implement the approved site sampling plan, and collect all total coliform samples according to the approved written plan.

 

3.             Beginning immediately upon the Effective Date, Respondent shall, for the purposes of this Order, monitor at least one total coliform sample in the PWS system per month for nine (9) consecutive months of operation (Compliance Demonstration).  It is the responsibility of Respondent to continue sampling for total coliform monthly, pursuant to 40 CFR 141.854(b), after completion of the sampling required by this paragraph.  During the Compliance Demonstration period, Respondent shall be subject to stipulated penalties, as specified below, for failure to collect required samples and/or failure to complete additional requirements as notified by IDEM following missed samples.

 

4.        If the results of any sample for total coliform required by Paragraph 3 indicate a positive result, the following actions shall be taken:

 

A.            Further analyze the positive sample for E. coli;

B.            Contact Sandra DeCastro, IDEM’s Compliance Section, Drinking Water Branch immediately at (317) 234-7444 for further instructions, and complete all requirements as instructed.

 

5.             Within 30 days of the Effective Date, Respondent shall, for the purposes of this Order, monitor nitrate at the entry point into the PWS system (Compliance Demonstration). This will count as the required nitrate sample for 2018.

 

6.             In the event Respondent fails to complete nitrate monitoring and reporting requirements during the Compliance Demonstration, Respondent shall complete any necessary additional requirements, in accordance with IDEM’s notifications.  Respondent shall be subject to stipulated penalties, as specified below, for failure to collect required samples and/or failure to complete additional requirements as notified by IDEM following missed samples. It is the responsibility of Respondent to continue sampling nitrate annually, pursuant to 327 IAC 8-2-4.1(f), after completion of the sampling required by paragraph 5.

 

7.             In the event any sample result causes an exceedance of the MCL for nitrate, Respondent shall complete all requirements to resolve the violation(s), in accordance with IDEM’s notification(s).  These requirements may include actions such as additional sampling and compliance plans.  Respondent shall be subject to stipulated penalties, as specified below, for failure to complete any requirements, in accordance with IDEM’s notification(s), following a MCL exceedance.

 

8.             Upon completion of any additional requirements following a missed sample, the Compliance Demonstration will re-start, and Respondent shall be subject to stipulated penalties, as specified below, for violations during this time period.  Failure to achieve compliance at the completion of the compliance demonstration period may subject Respondent to additional enforcement action.

 

9.             Within 30 days of the Effective Date, Respondent shall provide public notice for the past total coliform and nitrate monitoring violations listed in Paragraphs 8, and 10 of the Findings of Fact above, by following these steps:

 

A.            Complete attached Public Notice and Certification Form for Public Notice;

B.            Post Public Notice where the public has ready access for viewing, and for as long as the violation persists, but in no case less than seven days, even if the violation is resolved.

 

10.         Within 10 days of issuing the public notice required by Order Paragraph 9 above, or within 10 days of issuing a public notice required for any past or future monitoring and reporting violations, Respondent shall send to IDEM a signed certification form for public notice and representative copy of the public notice issued.  The forms that address the past total coliform and nitrate monitoring violations accompany this Agreed Order.

 

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

 

Olivia Kuss, 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 Eight Hundred Thirty Dollars ($830).  Said penalty amount shall be paid in nine (9) consecutive monthly payments. The first payment in the amount of Ninety-Four Dollars ($94) shall be due within 30 days of the Effective Date. The remaining amount of Seven Hundred Thirty-Six Dollars ($736) shall be due in eight (8) consecutive monthly payments of Ninety-Two Dollars ($92), the final day of each month being the “Due Date.” The checks shall be made payable to the “Environmental Management Special Fund.”

 

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

2

Failure to submit a site sampling plan within 10 days of effective date

$200 per week late, or part thereof.

3

Failure to collect required samples and/or failure to complete additional requirements as notified by IDEM following a missed total coliform sample.  

$200 per violation.

4

Failure to comply with any or all of the requirements of this paragraph, once a total coliform positive sample result is obtained.

$200 per week for violation of any part of this requirement.

5

Failure to monitor nitrate in 2018.

$200 per sample missed

6

Failure to complete additional requirements after a missed nitrate sample.

$200 per event.

7

Failure to comply with any or all of the requirements of this paragraph upon a nitrate MCL exceedance.

$200 per week for violation of any part of this requirement.

8

For violations during the re-started Compliance Demonstration.

$200 per violation.

9

Failure to provide public notice for the past monitoring violations within 30 days of the Effective Date.

$200 per week, or part thereof, past the 30-day deadline.

10

Failure to send to IDEM within 10 days a representative copy of each public notice for past or future monitoring violations and its signed accompanying Certification form for public notice.

$100 per week, or part thereof, past the 10-day deadline.

 

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 2017-24567-D of this action and shall be mailed to:

 

Office of Legal Counsel

Indiana Department of Environmental Management

IGCN, Room N1307

100 North 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 their 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 their obligation to comply with the requirements of their applicable permits or any applicable Federal or State law or regulation.

 

21.         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 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 NOV.

 

23.         Nothing in this Agreed Order shall prevent IDEM [or anyone acting on its behalf] from communicating with the U.S.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.

 

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:

RESPONDENTS:

Department of Environmental Management

Albion Bowl, Inc.

 

 

By:___________________________

By:__________________________

Samantha K. Groce, Chief

 

Water Enforcement Section

Printed:_______________________

Surface Water, Operations &

 

Enforcement Branch

Title:_________________________

Office of Water Quality

 

 

 

Date:_________________________

Date:________________________

 

 

 

COUNSEL FOR RESPONDENTS:

 

 

 

By:__________________________

 

 

 

Date:________________________

 

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS ______ DAY OF ________________________, 20___.

 

 

 

For the Commissioner:

 

Signed on March 7, 2019

Martha Clark Mettler

Assistant Commissioner

Office of Water Quality