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STATE OF INDIANA |
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BEFORE THE INDIANA DEPARTMENT |
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COMMISSIONER OF THE DEPARTMENT Complainant, v. THE COMPASS UNITED
METHODIST 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.
The Compass United Methodist Church, Inc.
(Respondent) owns and/or operates a non-transient, non-community public water
system (PWS) at Little Scholars Preschool, Yorktown Campus, with PWSID No. IN2180026,
serving 238 persons. The PWS is located at 8116 West Jackson Street, Muncie,
Delaware 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 et seq., IDEM issued a
Notice of Violation via Certified Mail to:
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Mark Ellcessor, Registered Agent |
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The Compass United Methodist Church,
Inc. |
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P. O. Box 412 |
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400 N CR 600 E |
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Selma, IN 47383 |
5.
Pursuant to 327 Indiana Administrative Code
(IAC) 8-2-2, each PWS 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 141.854(b), a non-community PWS 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.
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.
IDEM records indicate Respondent failed to monitor and
report at least one total coliform sample from the PWS during the third and
fourth quarters of 2016, in violation of 40 CFR 141.854(b) and 40 CFR
141.860(c)(1).
8.
Pursuant
to 40 CFR 141.854(f), a system
on quarterly or annual monitoring that experiences any of the events identified
in paragraphs (f)(1) through (f)(4) of this section must begin monthly
monitoring the month following the event. The system must continue monthly or
quarterly monitoring until the requirements in paragraph (g) of this section
for quarterly monitoring or paragraph (h) of this section for annual monitoring
are met.
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.
Respondent had two subpart Y monitoring
violations in a rolling 12-month period.
Respondent was required to begin monthly monitoring for total coliform in
February 2017. IDEM records indicate
Respondent failed to monitor and report at least one total coliform sample from
the PWS during the months of February, April, June, September, November, and
December 2017, and January, February, June, July, and August 2018, in violation
of 40 CFR 141.854(f) and 40 CFR 141.860(c)(1).
9.
Pursuant to 327 IAC 8-2-4.1(f), all PWSs shall
monitor nitrate to determine compliance with the maximum contaminant level
(MCL) for nitrate.
IDEM records
indicate that Respondent failed to monitor for nitrate during the year of 2017,
in violation of 327 IAC 8-2-4.1(f).
10. Pursuant to 327 IAC 8-2-44(d), a water system shall deliver a consumer
notice of lead tap water monitoring results to persons served by the water
system at sites that are tested. A water system shall provide the consumer
notification as soon as practical but, not later than 30 days after the system
learns of the lead tap water monitoring results.
IDEM records indicate that Respondent failed to provide a consumer
notification to persons served at the tap tested for lead in 2015, in violation
of 327 IAC 8-2-44(d).
On October 4, 2018, Respondent submitted
to IDEM a copy of the consumer notification of the lead tap water monitoring
results at the taps that it tested for lead in 2015, in accordance of 327 IAC
8-2-44(d).
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.
Pursuant to 327 IAC 8-2.1-7(b)(1)(C), owners
or operators of a PWS must give public notice for failure to perform water
quality monitoring, as required by drinking water regulations.
IDEM records indicate that Respondent
failed to notify persons served by the PWS of the failure to monitor at least
one total coliform sample from the PWS, required pursuant to 40 CFR 141.854(b) and 40 CFR
141.854(f), during the third and fourth quarters of 2016, and the months of
February, April, June, September, November, and December 2017, and January,
February, June, July, and August 2018, each in violation of 40 CFR
141.861(a)(4) and 327 IAC 8-2.1-7(b)(1)(C).
On October 4, 2018, Respondent submitted
public notices and corresponding public notice certifications for the above
noted violations, in accordance with 40 CFR 40 CFR 141.861(a)(4) and 327 IAC
8-2.1-7(b)(1)(C).
12. Pursuant to 327 IAC 8-11-1 and IC
13-18-11-11(a), all water or wastewater treatment plants and water distribution
systems, whether publically or privately owned, must be under the supervision
of an operator whose competency is certified by the commissioner in a
classification corresponding to the classification of the plant or distribution
system to be supervised.
Pursuant to
327 IAC 8-12-1.1, the owner or governing body of a water treatment plant or
water distribution system shall be responsible to accomplish the following:
(1) Place
each water treatment facility and water distribution system under the direct
supervision of a certified operator in responsible charge who:
(A) has
a valid certification of a grade eligible for operation at the classification
of water treatment facility or water distribution system of responsibility; and
(B) is
available to make process control or system integrity decisions about water
quality or quantity that affect public health.
(2) Designate
one (1) certified operator to have complete responsibility for the proper
operation of the water treatment plant or water distribution system.
(3) Assure
that a minimum of one (1) operator certified according to this rule must be
available for each operating shift.
(4) Notify
the commissioner of the name of the person designated according to subdivision
(1) to be the certified operator in responsible charge.
(5) Submit
written notice to the commissioner no later than 30 days after the
occurrence of one (1) of the following:
(A) A
change in the person serving as the certified operator in responsible charge.
(B) A
change in conditions or circumstances that were used as the basis for the
original classification of the water treatment plant or water distribution
system.
On September 12, 2018, IDEM issued a Noncompliance Letter to
Respondent for failure to operate without a certified operator since June 30,
2017. A records review conducted by IDEM on September 12, 2018 indicates that
the previous certified operator failed to meet the continued education
requirements, and failed to renew her license by June 30, 2017. Respondent
failed to appoint a competent certified operator in responsible charge to
operate and maintain the PWS, and failed to submit written notice to the
commissioner within 30 days after a change was made in the person serving as
the certified operator in responsible charge, in violation of IC
13-18-11-11(a), 327
IAC 8-11-1(a), and 327 IAC 8-12-1.1.
On October 4, 2018, Respondent notified IDEM that it appointed a
competent certified operator in responsible charge to operate and maintain the
PWS, in accordance with IC 13-18-11-11(a), 327 IAC 8-11-1(a), and 327 IAC
8-12-1.1.
13. 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 through 12 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 Notice of Violation and prior to the Effective Date.
2.
Beginning immediately upon the Effective Date,
Respondent shall, for the purposes of this Order, monitor and report at least
one total coliform sample in the PWS per month for six (6) consecutive months
of operation (Compliance Demonstration). During the Compliance Demonstration
period, Respondent shall be subject to stipulated penalties.
It is the responsibility of Respondent
to continue monitoring for total coliform monthly pursuant to 40 CFR 141.854(f).
3.
If the results of any sample for total coliform
required by Order Paragraph 2 indicate a positive result, the following actions
shall be taken:
A.
Further analyze the positive sample for E. coli;
and
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.
Respondent
shall be subject to stipulated penalties for failure to complete any
requirements in accordance with IDEM’s notification(s), following an MCL
exceedance.
4.
Within 30 days of the Effective Date,
Respondent shall provide public notice, for the past nitrate
monitoring violation listed in Paragraph 9 of the Findings of Facts, and total
coliform monitoring and reporting violations listed in Paragraph 12 of the
Findings of Facts, 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.
C.
Within 10 days of issuing the public notice,
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 monitoring violations accompany this Agreed Order.
5.
Immediately upon the Effective Date, for future
monitoring and/or reporting violations, Respondent shall provide public notice
to the State within 10 days, and notify the public pursuant to 40 CFR
141.861(a)(4) and 327 IAC 8-2.1-7.
6.
Respondent shall, for the purposes of this
Order, monitor nitrate at the entry point to the distribution system that is
representative of each well after treatment during the year of 2019, but no
later than March 31, 2019.
It is the responsibility of Respondent
to continue sampling nitrate annually, pursuant to 327 IAC 8-2-4.1(f).
7.
Within
10 days of becoming aware of a nitrate MCL exceedance, Respondent shall submit
notification to IDEM of the MCL exceedance. Respondent shall complete all
requirements to resolve the MCLs as instructed by IDEM’s notification(s).
8.
Within
30 days of the Effective Date, Respondent shall update the enclosed “System
Basic Information Summary” document by either marking corrections or stating
that the information is accurate directly on the attached document. Once
completed, the document shall be submitted to the address in Order Paragraph 9.
9.
All submittals required by this Agreed Order,
unless Respondent is notified otherwise in writing by IDEM, shall be sent to:
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Aletha Lenahan, Enforcement Case
Manager |
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Office of Water Quality – IGCN, Room
N1255 |
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Indiana Department of Environmental
Management |
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100 N. Senate Avenue |
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Indianapolis, IN 46204-2251 |
10.
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:
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Paragraph: |
Violation: |
Stipulated
Penalty: |
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2 |
Failure to
monitor and report required total coliform samples. |
$250 per
violation. |
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3 |
Failure to
comply with any or all of the requirements of this paragraph. |
$300 per
week for violation of any part of this requirement. |
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4 |
Failure to
comply with any or all of the requirements of this paragraph. |
$250 per
week, or part thereof, past the 30-day deadline. |
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5 |
If
applicable, failure to provide future public
notices. |
$250 per
week, or part thereof. |
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6 |
Failure to
monitor and report required nitrate sample during 2019. |
$350 per
sample missed. |
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7 |
Failure to
comply with any part of this paragraph after MCL exceedance. |
$400 per
week for violation of any part of this paragraph. |
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8 |
Failure to
submit the “System Basic Information Summary” document in the manner
specified in this paragraph. |
$100 per
week, or part thereof. |
11.
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.
12.
Penalties are payable by check to the
“Environmental Management Special Fund.” Checks shall include the Case Number
2018-25368-D, of this action and shall be mailed to:
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Office of Legal Counsel |
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Indiana Department of Environmental
Management |
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IGCN, Room N1307 |
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100 North Senate Avenue |
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Indianapolis, IN 46204 |
13.
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.
14.
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.
15.
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.
16.
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.
17.
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.
18.
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.
19.
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.
20.
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.
21. 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.
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TECHNICAL
RECOMMENDATION: |
RESPONDENT: |
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Department
of Environmental Management |
The
Compass United Methodist Church, Inc. |
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By:________________________ |
By:________________________ |
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Samantha K.
Groce, Chief |
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Water
Enforcement Section |
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Surface Water, Operations & |
Printed:_____________________ |
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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 January 25, 2019 |
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Martha
Clark Mettler |
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Assistant
Commissioner |
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Office
of Water Quality |