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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. new life
christian church and world
outreach, inc., 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.
New Life Christian Church and World Outreach,
Inc. (Respondent) owns and operates a transient non-community public water
system (PWS) with PWSID No. IN2430055, serving 508 persons. The PWS is located
at 744 South 325 East, Warsaw, Kosciusko 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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John
B. LoweII |
John
B. Lowe II |
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President
and Registered Agent |
New
Life Christian Church and World |
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New
Life Christian Church and World |
Outreach,
Inc |
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Outreach,
Inc. |
744
South 325 East |
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3393
East Old Road 30 |
Warsaw,
Indiana 46582 |
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Warsaw,
Indiana 46582 |
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5.
327 Indiana Administrative Code (IAC) 8-2-2
states 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 first and third quarters of 2017, 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 as described in Paragraph 7 above.
Respondent was required to begin monthly monitoring for total coliform in
November 2017.
IDEM records indicate Respondent failed
to monitor and report at least one total coliform sample from the PWS during
the months of December 2017, January 2018, February 2018, March 2018, June
2018, July 2018, August 2018, and September 2018, in violation of 40 CFR
141.854(f) and 40 CFR 141.860(c)(1).
9. Pursuant to 40 CFR 141.402(a)(2) and 327
IAC 8-2.3-4(a)(2), a ground water system must collect, within 24 hours of
notification of the total coliform-positive sample, at least one ground water
source sample from each ground water source in use at the time the total
coliform-positive sample was collected.
IDEM
records indicate Respondent failed to take at least one ground water source
sample and failed to notify the public after the total coliform-positive sample
on September 22, 2016, November 16, 2017, and April 6, 2018, in violation of 40
CFR 141.402(a)(2) and 327 IAC 8-2.3-4(a)(2).
10. 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, the owner or operator of a PWS which fails to perform
monitoring is required to notify persons served by the PWS. A copy of the
public notice must also be sent to the Commissioner within 10 days after the completion of each public notice.
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 first and
third quarters of 2017 and failed to notify
persons served by the PWS of the failure to monitor at least one total coliform
sample from the PWS for the months of December 2017, January 2018,
February 2018, March 2018, June 2018, July 2018, August 2018, and September
2018, each in violation of 40 CFR 141.861(a)(4)
and 327 IAC 8-2.1-7.
In addition, IDEM
records indicate that Respondent failed to
notify the public after the failure to collect at least one ground
water source sample from each ground water source in use at the time of the total coliform-positive sample on September 22, 2016, November 16,
2017, and April 6, 2018, in violation of 40
CFR 141.861(a)(4), and 327 IAC 8-2.1-7.
11. 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 10 of the
Findings of Fact, 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.
Within 30 days of the Effective Date,
Respondent shall collect at least one ground water source sample from each
ground water source in use at the time of the total coliform-positive samples.
3.
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).
4.
If the results of any sample for total coliform
required by Order Paragraph 3 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 a Maximum Contaminant Level (MCL)
exceedance.
5.
Within 30 days of the Effective Date,
Respondent shall provide public notice for the past total coliform and ground
water monitoring and reporting violations listed in Paragraph 10 of the
Findings of Facts 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.
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.
6.
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.
7.
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 8.
8.
All submittals required by this Agreed Order,
unless Respondent is notified otherwise in writing by IDEM, shall be sent to:
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Linda
L. McClure, Enforcement Case Manager |
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Office
of Water Quality – IGCN 1255 |
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Indiana
Department of Environmental Management |
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100
North Senate Avenue |
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Indianapolis,
IN 46204-2251 |
9.
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
collect ground water source sample. |
$300 per
sample missed. |
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3 |
Failure to
monitor and report required samples. |
$250 per
violation. |
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4 |
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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5 |
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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6 |
If
applicable, failure to provide public
notice. |
$250 per
week, or part thereof. |
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7 |
Failure to
submit the “System Basic Information Summary” document in the manner
specified. |
$100 per
week, or part thereof. |
10.
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.
11.
Stipulated penalties are payable by check to
the “Environmental Management Special Fund.” Checks shall include the Case
Number 2018-25702-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 |
12.
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.
13.
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.
14.
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.
15.
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.
16.
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.
17.
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.
18.
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.
19.
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.
20.
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:
New Life Christian |
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Department
of Environmental Management |
Church
and World Outreach, 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 February
21, 2019 |
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Martha
Clark Mettler |
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Assistant
Commissioner |
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Office
of Water Quality |