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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. Crossroads of America Council Boy Scouts of
America, 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.
Crossroads of America Council Boy Scouts of
America, Inc. (Respondent) owns and/or operates a transient, non-community public water system (PWS) with
PWSID No. IN2480860, serving 450 persons at Camp Kikthawenund Boy Scouts. The
PWS is located at 7651 West 500 North, Frankton, Madison 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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Joseph Wiltrout, Registered Agent |
Crossroads of America |
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Crossroads of America Council |
Boy Scouts of America |
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Boy Scouts of America, Inc. |
7607 West 500 North |
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7125 Fall Creek Rd North |
Anderson, IN 46011 |
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Indianapolis, IN 46256 |
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5.
327 Indiana Administrative Code (IAC) 8-2-2
states that 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 141.858(a)(1), if a sample
taken under 40 CFR 141.854 through 141.857 is total coliform-positive, the
system must collect a set of repeat samples within 24 hours of being notified
of the positive result. The system must collect no fewer than three repeat
samples for each total coliform-positive sample found.
Pursuant to 40 CFR 141.859(b)(3), a PWS
must conduct a Level 1 assessment consistent with State requirements if the
system exceeds one of the treatment technique triggers in 40 CFR 141.859(a)(1).
IDEM records indicate Respondent
collected a total coliform-positive sample on September 28, 2017. The
Respondent collected two of the required three repeat samples on October 3,
2017. One of the two repeat samples collected, in addition to the ground water
source sample, tested positive for total coliform, a Level 1 treatment
technique trigger, in violation of 40 CFR141.858(a)(1).
Respondent triggered a Level 1
assessment in September 2017, pursuant to 40 CFR 141.859(b)(3).
Respondent completed the Level 1 assessment
form on October 17, 2017.
8.
Pursuant to 40
CFR 141.854(j), a PWS on quarterly monitoring must collect at least three
additional routine monitoring samples the month following one or more total
coliform-positive samples.
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 collect three additional routine
monitoring samples from the PWS in October 2017, the month following the total
coliform-positive sample, each in violation of 40 CFR 141.854(j) 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 after the total coliform-positive sample on December 21, 2017, in
violation of 40 CFR 141.402(a)(2) and 327 IAC 8-2.3-4(a)(2).
10. 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 one subpart Y monitoring violation, failure to collect three additional
routine monitoring samples in October 2017, and one Level 1 assessment under
the provisions of 40 CFR 141.859 in a rolling 12-month period for a system on
quarterly monitoring. Respondent was required to begin monthly monitoring for
total coliform December 2017. IDEM records indicate Respondent failed to
monitor and report at least one total coliform sample from the PWS during the
months of January,
February, July, and September 2018, each in violation of 40 CFR 141.854(f) and 40 CFR 141.860(c)(1).
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, 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 collect:
A.
three additional routine
samples following the total coliform-positive sample collected on September 28,
2017,
B.
one ground water source sample following the
total coliform-positive sample collected on December 2017, and
C.
at least one total
coliform sample from the PWS for the months of January, February, July, and September 2018,
each in violation of 40 CFR 141.861(a)(4) and 327 IAC
8-2.1-7.
12.
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 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 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 a Maximum
Contaminant Level (MCL) exceedance.
4.
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 sample.
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.
All submittals required by this Agreed Order,
unless Respondent is notified otherwise in writing by IDEM, shall be sent to:
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Brandi
Collignon, 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 |
7.
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 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
collect ground water source sample. |
$300 per
sample missed. |
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5 |
If
applicable, failure to provide public
notice. |
$250 per
week, or part thereof. |
8.
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.
9.
Penalties are payable by check to the
“Environmental Management Special Fund.” Checks shall include the Case Number 2018-25839-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 |
10.
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.
11.
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.
12.
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.
13.
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.
14.
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.
15.
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.
16.
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.
17.
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.
18.
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 THIS PAGE INTENTIONALLY LEFT BLANK
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TECHNICAL
RECOMMENDATION: |
RESPONDENT: |
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Department
of Environmental Management |
Crossroads
of America Council Boy Scouts of America, 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 12, 2019 |
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Martha
Clark Mettler |
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Assistant
Commissioner |
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Office
of Water Quality |