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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. CHURCH OF LIVING FAITH, 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.
Church of Living Faith, Inc. (Respondent) owns
and/or operates transient
non-community public water system (PWS) with PWSID No. IN2020804, serving 90
persons. The PWS is located at 10717 Roberts Road, Woodburn, Allen 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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Randy
Hochstetler, President |
Lester
Zehr, Registered Agent |
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Church
of Living Faith, Inc. |
Church
of Living Faith, Inc. |
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9636
Graber Rd. |
12317
Antwerp Road |
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Grabill,
IN 46741 |
Grabill,
IN 46741 |
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(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 July 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).
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 second quarter 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 October
2018. IDEM records indicate Respondent failed to
monitor at least one total coliform sample from the PWS during the months of February, March, April, May, July,
August, September and December 2019 and January 2020,
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 second quarter 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 February, March, April, May, July, August, September and
December 2019 and January 2020, each 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 July
2017,
the month following the total coliform-positive sample, in violation of 40 CFR 141.854(j)
and 40 CFR 141.860(c)(1);
11.
Orders of the Commissioner are subject to
administrative review by the Offfice of Environmental
Adjudication under IC 4-21.5; however, in recognition of the settlement
reached, Respondentacknowledges 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 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.
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 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.
5.
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.
6.
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 7.
7.
All submittals required by this Agreed Order,
unless Respondent is notified otherwise in writing by IDEM, shall be sent to:
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Grant
Chaddock, 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 |
8.
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 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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5 |
If
applicable, failure to provide public
notice. |
$250
per week, or part thereof. |
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6 |
Failure
to submit the “System Basic Information Summary” document in the manner
specified. |
$100
per week, or part thereof. |
9.
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.
10.
Penalties are payable by check to the
“Environmental Management Special Fund.” Checks shall include the Case Number 2020-26932-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 |
11.
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.
12.
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.
13.
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.
14.
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.
15.
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.
16.
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.
17.
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.
18.
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.
19.
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 |
Church
of Living Faith, 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 July 9, 2020 |
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Martha
Clark Mettler |
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Assistant
Commissioner |
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Office
of Water Quality |