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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. Plymouth Baptist Church, 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.
Plymouth Baptist Church, Inc. (Respondent) owns
and/or operates a non-transient
non-community public water system (PWS) with PWSID No. IN2500922, serving 125
persons. The PWS is located at 11345 9A Road, Plymouth, Marshall 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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Douglas Dieterly, Registered Agent |
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Plymouth Baptist Church, Inc. |
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11345 9A RD |
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Plymouth, Indiana 46563 |
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.
Pursuant
to the Revised Total Coliform Rule at 327 IAC 8-2.4-1, 40 CFR 141, Subpart Y is
incorporated by reference.
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 at least one total coliform sample from the PWS during the first,
second, and third quarters of 2018, each 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 October
2018. IDEM
records indicate Respondent failed to monitor at least one total coliform
sample from the PWS during the months of October
and November 2018, and January 2019, each in violation of 40 CFR 141.854(f) and 40 CFR 141.860(c)(1).
9.
Pursuant to 327
IAC 8-2-37(c)(2), water systems shall collect at least one (1) sample
from the number of sites specified in the third column of the table in this
subsection during each monitoring period specified in subsection (d)(4) and
from monitoring sites that are representative of the sites required for
standard monitoring.
Respondent is
required to collect five (5) lead and copper samples during two (2) consecutive
six-month periods, January 1 through June 30, and July 1 through December 31. IDEM
records indicate Respondent failed to monitor and report for lead and copper
during the periods of January 1 through June 30, 2018 and July 1 through
December 31, 2018, in violation of 327 IAC 8-2-37(c)(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, 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:
a.
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 January
2019, in
violation of 40 CFR 141.861(a)(4); and
b.
failed
to notify persons served by the PWS and the Commissioner of the failure to
perform Lead and Copper monitoring during the months of January 1 through June 30, 2018 and July 1 through December 31, 2018, in violation of 327 IAC 8-2.1-7.
Respondent submitted the public notice
forms on March 11, 2019.
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 6 through 9 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.
Respondent shall collect lead and copper
samples during the next two monitoring periods, January 1, 2019 through June
30, 2019 and July 1, 2019 through December 31, 2019, required pursuant to 327 IAC 8-2-37.
5.
Within 30 days of
receiving the lead and copper results, Respondent shall deliver the Consumer
Notice Lead Results in Drinking Water Form (attached) to persons served by the
water system.
6.
Within 10 days of issuing the Consumer Notice
of Lead Results in Drinking Water Form to persons served by the water system,
Respondent shall send IDEM a signed Certification Form for Consumer Notice of
Lead Results (attached).
7.
Immediately upon the
Effective Date, for future monitoring 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.
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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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 |
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
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 lead and copper samples. |
$350 per
sample missed. |
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5 |
Failure to
deliver the Consumer Notice of the Lead Results in Drinking Water form to
persons served. |
$300 per
week, or part thereof |
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6 |
Failure to
send to IDEM the Certification Form for Consumer Notice of Lead Results |
$300 per
week, or part thereof |
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7 |
If
applicable, failure to provide public
notice. |
$250 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.
Penalties are payable by check to the
“Environmental Management Special Fund.” Checks shall include the Case Number
2019-25963-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: |
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Department
of Environmental Management |
Plymouth
Baptist 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
March 14, 2019 |
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Martha
Clark Mettler |
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Assistant
Commissioner |
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Office
of Water Quality |