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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. Van Buren Hill Amish school No. 2, 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.
Van Buren Hills Amish School No. 2 (Respondent)
owns and/or operates non-transient
non-community public water system (PWS) with PWSID No. IN2440100, serving 35
persons. The PWS is located at 4030 North 1000 West, Shipshewana, LaGrange
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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Richard Bontrager |
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Van Buren Hills Amish School No. 2 |
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4025 North 1000 West |
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Shipshewana, IN
46565 |
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. Pursuant
to the Revised Total Coliform Rule at 327 IAC 8-2.4-1, 40 Code of Federal
Regulations (CFR) 141, Subpart Y is incorporated by reference.
7. Pursuant
to 40 CFR 141.853(a), a PWS must develop a written site sampling plan that
identifies a sample collection schedule and sampling sites that are
representative of water throughout the distribution system not later than March
31, 2016. These plans are subject to State review and revision. Systems must
collect total coliform samples according to the written site sampling plan. Monitoring required by 40 CFR 141.854 through
40 CFR 141.858 may take place on a customer’s premise, dedicated sampling
station, or other designated compliance sampling location. Routine and repeat
sample sites and any sampling points necessary to meet the requirements of 40
CFR 141 Subpart S must be reflected in the site sampling plan.
IDEM records indicate that
Respondent failed to submit a site sampling plan and IDEM has not received a
site sampling plan from Respondent to date, in violation of 40 CFR 141.853(a).
8. 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, third, and fourth quarters of 2018, in violation of 40 CFR 141.854(b)
and 40 CFR 141.860(c)(1).
9. 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 January 2019.
IDEM
records indicate Respondent failed to monitor at least one total coliform
sample from the PWS during the months of January and March 2019, in violation of 40 CFR 141.854(f) and 40 CFR 141.860(c)(1).
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, during the first, second, third, and fourth quarters of 2018,
each in violation of 40 CFR 141.861(a)(4) and 327 IAC 8-2.1-7;
b. 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 and March 2019, each 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 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. Within 10 days of the Effective Date,
Respondent shall develop and submit to IDEM for review a site sampling plan
which identifies sampling sites and a sample collection schedule that are
representative of water throughout the distribution system. The site sampling plan
is subject to IDEM approval. In the event IDEM finds the site sampling plan
submitted by Respondent deficient, Respondent shall revise and resubmit the
plan, in accordance with IDEM’s notification(s).
Respondent, upon receipt of written
notification from IDEM, shall immediately implement the approved site sampling
plan, and collect all total coliform samples according to the approved written
plan.
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 monitoring
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 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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Patrick
Colcord, 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
submit or modify the site sampling plan within the required time period. |
$100 per
week late, or part thereof. |
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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.
Penalties are payable by check to the
“Environmental Management Special
Fund.” Checks shall include the Case
Number 2019-26133-D, of
this action and shall be mailed to:
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Indiana Department of Environmental
Management |
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Accounts Receivable |
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IGCN, Room 1340 |
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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 |
Van
Buren Hills Amish School No. 2 |
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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 September 18, 2019 |
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Martha Clark Mettler |
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Assistant Commissioner |
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Office of Water Quality |