Agreed Order

STATE OF INDIANA	)		BEFORE THE INDIANA DEPARTMENT
	)	SS:	OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION	)

COMMISSIONER OF THE DEPARTMENT			)
OF ENVIRONMENTAL MANAGEMENT,			)
			)
	Complainant,		)
			)
		v.	)	CASE NO. 2000-9954-W
			)
THE WATER BOWL INC.,			)
			)
	Respondent.		)

AGREED ORDER

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.

I. FINDINGS OF FACT

1. The Complainant is the Commissioner (hereinafter referred to as "Complainant") of the Indiana Department of Environmental Management, a department of the State of Indiana created by IC 13-13-1-1.

2. The Respondent is The Water Bowl, Inc. ("Respondent"), which operates a public water supply ("PWS") system located at the Water Bowl, 6811 North State Road 3, in Muncie, Delaware County, Indiana. This is a transient noncommunity PWS system, PWSID Number 2180038, that serves 300 people.

3. The Indiana Department of Environmental Management ("IDEM") has jurisdiction over the parties and subject matter of this action.

4. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation via Certified Mail to:

Don and Barbara Irving, Owners
Water Bowl
11000 North 100W
Muncie, Indiana 47303

5. On or before November 2, 2000, and on or before April 30, 2001, record reviews were conducted by a representative of IDEM's Office of Water Quality ("OWQ"). The following violations were in existence or observed at the time of these record reviews:

A. Pursuant to 327 IAC 8-2-4.1(f), all public water supply systems shall monitor to determine compliance with the maximum contaminant level ("MCL") for nitrate. The Respondent failed to monitor the Water Bowl PWS system for nitrate during 1998, 1999, and 2000, in violation of 327 IAC 8-2-4.1(f).

B. Pursuant to 327 IAC 8-2-8(c), a noncommunity water supply system which serves at least 25, but not more 1,000, persons must collect at least one routine total coliform sample each calendar quarter. The Respondent failed to collect at least one routine total coliform sample from the Water Bowl PWS system during the third quarter of 1998, the third quarter of 1999, and the third quarter of 2000, in violation of 327 IAC 8-2-8(c).

Pursuant to 327 IAC 8-2-15(d) (now superseded by 327 IAC 8-2.1-7 and 327 IAC 8-2.1-10), the owner or operator of a noncommunity water supply system which fails to either perform monitoring or to comply with a testing procedure established by this rule, or which is subject to a variance or exemption under this rule, shall initially notify persons served by the system, by an appropriate method as outlined in this rule, within three months after the violation occurs or the variance or exemption is granted. The Respondent failed to notify persons served by the Water Bowl PWS system of the nitrate monitoring violations during 1998, 1999, and 2000, in violation of 327 IAC 8-2-15(d).

On April 28, 2000, IDEM issued a Warning of Noncompliance letter ("WONC") to Mr. Don Irving at the Water Bowl, RR3 Box 35, Muncie, Indiana 47302. The WONC addressed the nitrate monitoring violations during 1998 and 1999, and the total coliform monitoring violations during the first, second, third, and fourth quarters of 1998 and the first, second, third, and fourth quarters of 1999. Furthermore, the WONC requested that the recipient provide a written response to IDEM within fourteen days of its receipt. IDEM received no response to the WONC. In telephone call of October 8, 2002, system representative Mrs. Barbara Irving advised Complainant that the system may not have received this WONC because the address used was obsolete in April 2000.

The System provided a public notice dated June 18, 2001, which addressed its failure to submit drinking water samples for nitrate during the compliance period of annual 1998, 1999, and 2000. Furthermore, the System provided satisfactory samples for nitrate dated June 18, 2001, and May 24, 2002.

The System provided a public notice dated June 18, 2001, which addressed its failure to submit drinking water samples for total coliform during the compliance period of third quarters of 1998, 1999, and 2000. Furthermore, the System provided satisfactory samples for total coliform covering the second quarters of 2001 (June 18^th) and 2002 (May 24^th).

Subsequent to the issuance of the Notice of Violation, it was determined that the Water Bowl facility is owned by Ralph D. (Don) and Barbara Irving as sole proprietors, and the Water Bowl business is owned by The Water Bowl, Inc., of which the same individuals are controlling officers. Customarily, responsibility for PWS maintenance is vested jointly and severally between land owners and business owners. In this instance, both ownerships are controlled in common. Therefore, responsibility is assigned to the owner with the operative role, i.e. the Corporation. The Water Bowl, Inc. waives its right to a Notice of Violation in this case.

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 her 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 8-2-4.1(f), 327 IAC 8-2-8(c), 327 IAC 8-2.1-7 and 327 IAC 8-2.1-10.

3. During each calendar year after the year of the Effective Date of this Agreed Order, the Respondent shall monitor for nitrate at the entry point to the Water Bowl PWS system, pursuant to 327 IAC 8-2-4.1(f).

Within 30 days after the Effective Date of this Agreed Order and each calendar quarter thereafter that the Water Bowl PWS system is in operation, the Respondent shall monitor for total coliform in the Water Bowl PWS system, pursuant to 327 IAC 8-2-8(c).

Within the shorter of either ten days after the Respondent receives any nitrate or total coliform monitoring results or ten days after the end of the applicable nitrate or total coliform monitoring period, the Respondent shall submit said monitoring results for the Water Bowl PWS system to IDEM, pursuant to 327 IAC 8-2-13(a). A copy of the monitoring results shall be sent to both IDEM's Office of Enforcement ("OE") and OWQ's Drinking Water Branch ("DWB").

Within 30 days after the Effective Date of this Agreed Order, the Respondent shall provide public notification for the violations listed in Section I, Paragraph 5.C., by hand delivery or posting in a conspicuous location in the area served by the Water Bowl PWS system, pursuant to 327 IAC 8-2.1-7 and 327 IAC 8-2.1-10.

In the event that the Respondent fails to complete any monitoring required by this Agreed Order, the Respondent shall, within three (3) months of the failure, provide public notification of said failure by hand delivery or posting in a conspicuous location in the area served by the Water Bowl PWS system, pursuant to 327 IAC 8-2.1-7 and 327 IAC 8-2.1-10.

8. Within seven days of providing any public notice required by this Agreed Order, the Respondent shall submit a copy of the public notice to IDEM, pursuant to 327 IAC 8-2-13(c). A copy of the public notice, along with an explanation of how the public notification was distributed, shall be sent to both IDEM's OE and OWQ's DWB.

9. All submittals required by this Agreed Order to be submitted to OE, unless notified otherwise in writing, shall be sent to:

Richard Deitsch, Office of Enforcement

Indiana Department of Environmental Management

100 North Senate Avenue

P.O. Box 6015

Indianapolis, IN 46206-6015

10. All submittals required by this Agreed Order to be submitted to OWQ's DWB, unless notified otherwise in writing, shall be sent to:

Drinking Water Branch

Indiana Department of Environmental Management

P.O. Box 7148

Indianapolis, IN 46207-7148

11. In the event the following terms and conditions of this section are violated, the Complainant may assess and the Respondent shall pay a stipulated penalty in the following amounts:

Violation Penalty

Failure to comply with Paragraph 3 $500 for the failure of the Respondent to monitor for nitrate within either the 30-day or any subsequent yearly time frame.

Failure to comply with Paragraph 4 $500 for the failure of the Respondent to monitor for total coliform within either the 30-day or any subsequent quarterly time frame.

Failure to comply with Paragraph 5 $100 per each week, or part thereof, past the applicable 10-day deadline that the Respondent fails to submit a copy of the results of any monitoring required by this Agreed Order to IDEM.

Failure to comply with Paragraph 6 $250 per each week, or part thereof, past the 30-day deadline that the Respondent fails to provide public notification for the violations listed in Section I, Paragraph 5.C.

Failure to comply with Paragraph 7 $250 per each week, or part thereof, past the 3-month deadline that the Respondent fails to provide public notification for any violation of the monitoring requirements of this Agreed Order.

Failure to comply with Paragraph 8 $100 per each week, or part thereof, past the 7-day deadline that the Respondent fails to submit a copy of any public notification required by this Agreed Order to IDEM.

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 Indiana law, including but not limited to civil penalties pursuant to IC 13-30-4.

13. 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:

Cashier

Indiana Department of Environmental Management

100 N. Senate Avenue

P. O. Box 7060

Indianapolis, IN 46207-7060

14. 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.

15. 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.

16. 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.

17. This Agreed Order shall remain in effect until the Respondent has complied with the terms and conditions of Paragraphs 3 through 13 of this Agreed Order, and IDEM issues a close-out letter.

TECHNICAL RECOMMENDATION: RESPONDENT:

Department of Environmental Management The Water Bowl Inc.

By: ______________________________ By: ______________________________

Mark W. Stanifer

Section Chief, Water Section Printed: _____________________________

Office of Enforcement

Date: _______________________________ Title: ______________________________

Date: ______________________________

COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:

Department of Environmental Management

By: ______________________________ By: ______________________________

Office of Legal Counsel

Date: ______________________________ Date: ______________________________

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS ________________ DAY OF ____________________________, 2002.

For The Commissioner:

Original signed on 12/12/2002 by

Felicia A. Robinson

Assistant Commissioner

Office of Enforcement