STATE OF INDIANA |
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BEFORE THE INDIANA DEPARTMENT |
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COMMISSIONER OF THE DEPARTMENT Complainant, v. Bearcreek
Crossing, 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.
Bearcreek Crossing, Inc.
(Respondent) owns and/or operates Pak a Sak No. 85, a transient, non-community public water
system (PWS) with PWSID No. IN2380835, serving 101 persons. The PWS is located at 893 East State Road 18, Bryant, Jay 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:
Kevin Huffman |
Christopher Briggs, President |
Pak a Sak No.
85 |
Bearcreek Crossing Inc. |
533 S 200 W |
920 N. Main Street |
PO Box 1285 |
Geneva, Indiana 46740 |
Portland,
IN 47371 |
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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.
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 141.858(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),
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
failed to take every required repeat sample, a Level 1 treatment technique
trigger, after the total coliform-positive sample on September 19, 2018, in violation
of 40 CFR 141.858(a)(1).
Respondent triggered a Level 1
assessment pursuant to 40 CFR 141.859(b)(3).
The Level 1 Assessment was completed
by the Respondent on February 11, 2019.
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 2018, the month following the total coliform-positive sample, each in violation
of 40 CFR 141.854(j).
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 one subpart Y
monitoring violation 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 in
December 2018. IDEM records indicate Respondent failed to monitor at least
one total coliform sample from the PWS during the months of January and
February 2019, in violation of 40 CFR 141.854(f) and 40
CFR 141.860(c)(1).
10.
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 September 19, 2018, in violation of 40 CFR
141.402(a)(2).
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, 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:
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 and February, 2019, each in violation of
40 CFR 141.861(a)(4) and 327 IAC 8-2.1-7;
b.
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 19, 2018, in violation of 40 CFR 141.861(a)(4), and 327 IAC 8-2.1-7;
c.
failed to notify the public
after the failure to collect three
additional routine monitoring samples from the PWS in October 2018, the month
following the total coliform-positive sample, in violation of 40 CFR 141.854(j)
and 40 CFR 141.860(c)(1).
12.
Orders of the Commissioner are
subject to administrative review by the Office of Environmental Adjudication
under IC 4-21.5; however, in recognition of the settlement reached, Respondent
acknowledges notice of this right and 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, 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.
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.
4.
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.
5.
Within 30 days of the Effective
Date, Respondent shall provide public notice, for the past total coliform
monitoring violations and ground water monitoring violations listed in
Paragraph 11 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 9.
8.
Respondent is assessed and agrees to
pay a civil penalty of Eight Hundred Forty Five Dollars ($845). Said penalty
amount shall be due and payable to the “Environmental Management Special Fund”
within 30 days of the Effective Date, the 30th day being a “Due
Date.”
9.
All submittals required by this
Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall
be sent to:
Patrick
Colcord, Enforcement Case Manager |
Office of Water
Quality – IGCN 1255 |
Indiana
Department of Environmental Management |
100 North
Senate Avenue |
Indianapolis,
IN 46204-2251 |
10.
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:
Paragraph: |
Violation: |
Stipulated Penalty: |
2 |
Failure to monitor and report
required samples. |
$250 per violation. |
3 |
Failure to collect ground water
source sample. |
$300 per sample missed. |
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. |
5 |
Failure to comply with any or all
of the requirements of this paragraph. |
$300 per week for violation of any
part of this requirement. |
6 |
If applicable, failure to provide public notice. |
$250 per week, or part thereof. |
7 |
Failure to submit the “System
Basic Information Summary” document in the manner specified. |
$100 per week, or part thereof. |
11.
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.
12.
Civil and stipulated penalties are
payable by check to the “Environmental Management Special Fund.” Checks shall
include the Case Number 2019-26139-D, of this action and shall be mailed to:
Indiana Department of
Environmental Management |
Accounts Receivable |
IGCN, Room 1340 |
100 North Senate Avenue |
Indianapolis, IN 46204 |
13.
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.
14.
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.
15.
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.
16.
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.
17.
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.
18.
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.
19.
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.
20.
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.
21.
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.
TECHNICAL RECOMMENDATION: |
RESPONDENT: |
Department of Environmental
Management |
Bearcreek Crossing, Inc. |
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By:__________________________ |
By:________________________ |
Samantha K. Groce, Chief |
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Water Enforcement Section |
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Surface
Water, Operations & |
Printed:_____________________ |
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 October 15, 2019 |
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Martha Clark Mettler |
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Assistant Commissioner |
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Office of Water Quality |