STATE OF INDIANA |
) |
|
BEFORE THE INDIANA DEPARTMENT |
||
|
|||||
COMMISSIONER OF THE DEPARTMENT Complainant, v. Wabash Valley Girls Softball League,
INC, Respondent. |
) |
|
|||
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.
Wabash Valley Girls Softball League, INC.
(Respondent) operates a seasonal transient non-community public water system
(PWS) with PWSID No. IN2840903, serving 50 persons, which is in operation from April
1st to September 30th, annually. The PWS is located at
2601 North 19th Street, Terre Haute, Vigo 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:
Matt
Dinkel, President |
Wabash
Valley Girls Softball League, INC |
6001
E Grant Ave |
Terre
Haute, IN, 47805 |
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 141.854(i)(1), beginning April 1, 2016, all
seasonal systems must demonstrate completion of a State-approved start-up
procedure, which may include a requirement for startup sampling prior to
serving water to the public.
Pursuant
to 40 CFR 141.860(b)(2), a treatment technique violation occurs when a seasonal
system fails to complete a State-approved start-up procedure prior to serving
water to the public.
Pursuant
to 40 CFR 141.860(d)(3), failure to submit certification of completion of
State-approved start-up procedure by a seasonal system is a violation.
IDEM
records indicate Respondent failed to submit certification of completion of the
State-approved start-up procedure prior to the start of seasonal operation on
April 1, 2017; April 1, 2018; and April 1, 2019, in violation of 40 CFR
141.854(i)(1), 40 CFR 141.860(b)(2), and 40 CFR
141.860(d)(3).
8.
Pursuant
to 40 CFR 141.854(i)(2), a seasonal system must
monitor every month that it is in operation unless it meets the criteria in
paragraphs (i)(2)(i)
through (iii) of this section to be eligible for monitoring less frequently
than monthly beginning April 1, 2016, except as provided under paragraph (c) of
this section.
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.
Pursuant
to 40 CFR 141.860(d)(1), failure to submit a monitoring report or completed
assessment form after a system properly conducts monitoring or assessment in a
timely manner is a reporting violation.
IDEM records indicate Respondent failed
to monitor at least one total coliform sample from the PWS during the months of
April, June, and July 2018; and April, May, June, July, August, and September
2019 and failed to report to IDEM, each in violation of 40 CFR 141.854(i)(2), 40 CFR 141.860(c)(1), and 40 CFR 141.860(d)(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 October 26, 2018, in violation of 40 CFR
141.402(a)(2).
10.
Pursuant to 40 CFR 141.859(b)(3)(i), the system must submit the completed Level 1 assessment
form to the State within 30 days after the system learns that it has exceeded a
trigger.
Respondent triggered a Level 1 assessment
on October 26, 2018. Respondent failed to complete and submit the Level 1
Assessment form within 30 days after the system learned that it has exceeded a
trigger, in violation of 40 CFR 141.859(b)(3)(i).
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 subpart Q of this part.
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 months of April, June, and July 2018; and April, May, June,
July, August, and September 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 October 26, 2018, in violation
of 40 CFR 141.861(a)(4), and 327 IAC
8-2.1-7;
c.
failed to notify persons
served by the PWS of the failure to submit Level 1 Assessment form within 30
days after the system learned that it had exceeded a trigger pursuant to 40 CFR
141.859(b)(3)(i), in violation of 327 IAC 8-2.1-7.
12.
Orders of the Commissioner are subject to
administrative review by the Office of Environmental Adjudication under IC
14-21.5; 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 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 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.
3.
Within 30 days prior to commencing seasonal
operation at the Site or within 30 days from the Effective Date, if start-up
has occurred prior to the adoption of the Agreed Order, Respondent shall
demonstrate completion of a State-approved start-up procedure for 2020, and
submit the completed form (attached) to IDEM.
4.
Within 15 days of commencing seasonal operation
at the Site or within 15 days from the Effective Date, if seasonal operation
has commenced, 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 during April through September (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(i)(2).
5.
If the results of any sample for total coliform
indicate a positive result, the following actions shall be taken:
A.
Further analyze the positive sample for E. coli;
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.
6.
Within 30 days of commencing seasonal operation
at the Site or within 30 days from the Effective Date, if seasonal operation
has commenced, 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.
7.
Within 15 days of commencing seasonal operation
at the Site or within 15 days from the Effective Date, if seasonal operation
has commenced, 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.
8.
Immediately upon the
Effective Date, for future monitoring 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.
9.
Within 30 days of the
Effective Date, Respondent shall complete a Level 1 assessment (attached)
consistent with IDEM requirements, and submit the completed assessment form to
IDEM, which identifies any sanitary defects detected, corrective actions
completed, and a proposed timetable for any corrective actions not already
completed. In the event IDEM determines that the assessment is not sufficient,
Respondent shall submit a revised assessment form to IDEM in accordance with
IDEM’s notification. Respondent shall complete all corrective actions in
accordance with the proposed timetable.
10. All submittals
required by this Agreed Order, unless Respondent is notified otherwise in
writing by IDEM, shall be sent to:
Delaney
Isaacs, Enforcement Case Manager |
Office of
Water Quality – IGCN 1255 |
Indiana
Department of Environmental Management |
100 North
Senate Avenue |
Indianapolis,
IN 46204-2251 |
11.
Respondent is assessed and agrees to pay a
civil penalty of Five Hundred Twelve Dollars ($512). 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.”
12.
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
submit the “System Basic Information Summary” document in the manner
specified. |
$100 per
week, or part thereof. |
3 |
Failure to
complete the State-approved start-up procedure. |
$300 per
week late, or part thereof. |
4 |
Failure to
monitor total coliform for 6 consecutive months of operation. |
$250 per
sample missed. |
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 |
[PN
Associated with FOF] Failure to comply with any or all of
the requirements of this paragraph. |
$300 per
week, or part thereof, past the 30-day deadline. |
7 |
Failure to
collect groundwater source sample |
$300 per
sample missed. |
8 |
If
necessary, failure to provide public notice. |
$250 per
week, or part thereof. |
9 |
Failure to
complete the Level 1 assessment and/or submit the form to IDEM within the
required time period. |
$250 per
week late, or part thereof. |
9 |
Failure to
complete corrective actions for sanitary defects in accordance with the
proposed timetable. |
$300 per
corrective action. |
13.
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.
14.
Civil and stipulated penalties are payable by
check to the “Environmental Management Special Fund.” Checks shall include the
Case Number 2019-26582-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 |
15.
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.
16.
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.
17.
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.
18.
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.
19.
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 itsapplicable
permits or any applicable Federal or State law or regulation.
20.
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.
21.
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.
22.
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.
23.
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 |
Wabash Valley Girls Softball League
Inc. |
|
|
By: __________________________ |
By: ________________________ |
Samantha K. Groce, Chief |
|
Water Enforcement Section |
|
Surface
Water, Operations & |
Printed: _____________________ |
Enforcement
Branch |
|
Office of
Water Quality |
Title: _______________________ |
|
|
Date: ________________________ |
Date: _______________________ |
|
|
|
COUNSEL
FOR RESPONDENT: |
|
|
|
By: ________________________ |
|
|
|
Date: ______________________ |
|
|
APPROVED AND ADOPTED BY THE INDIANA
DEPARTMENT OF ENVIRONMENTAL |
|
MANAGEMENT THIS ___________ DAY OF
________________, 20___. |
|
|
|
|
For the Commissioner: |
|
|
|
Signed on November
23, 2020 |
|
Martha Clark Mettler |
|
Assistant Commissioner |
|
Office of Water Quality |