STATE OF INDIANA |
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BEFORE THE INDIANA DEPARTMENT |
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COMMISSIONER OF THE DEPARTMENT Complainant, v. Arlington Avenue 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.
Arlington
Avenue Baptist Church INC (Respondent) owns and/or operates a transient
non-community public water system (PWS) with PWSID No. IN2493148, serving 28
persons. The PWS is located at 6410 South Arlington Avenue, Indianapolis,
Marion 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:
Richard
Walton, Registered Agent |
Arlington
Avenue Baptist Church INC |
6410 South
Arlington Avenue |
Indianapolis,
Indiana 46237 |
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
141.859(a)(2)(i) and (ii), a PWS must conduct a Level
2 assessment in accordance with paragraph (b) of this section if the system has
an E. coli Maximum Contaminant Level (MCL) violation or has a second Level 1
trigger within a twelve-month rolling period.
Pursuant to 40 CFR 141.859(b)(4), a PWS must conduct a
Level 2 assessment, completed by the State or by a party approved by the State,
consistent with State requirements, if the system exceeds one of the treatment
technique triggers in 40 CFR 141.859(a)(2).
Pursuant to 40 CFR 141.859(b)(4)(i),
the system must submit the completed Level 2 assessment form to the State
within 30 days after the system learns that it has exceeded a trigger.
IDEM records indicate Respondent had a second Level 1
trigger within a 12-month rolling period on April 22, 2019 and November 18,
2019, a Level 2 treatment technique trigger, pursuant to 40 CFR
141.859(a)(2)(ii).
Respondent failed to complete and submit the Level 2
Assessment form within 30 days after the system learned that it had exceeded a
trigger, in violation of 40 CFR 141.859(b)(4)(i).
8.
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 failed to notify
persons served by the PWS of the failure to submit Level 2 Assessment form
within 30 days after the system learned that it had exceeded a trigger pursuant
to 40 CFR 141.859(b)(4)(i), in violation of 327 IAC
8-2.1-7 and 40 CFR 141.861(a)(4).
9.
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 and 8 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 complete a Level 2 assessment 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.
3.
Within 30 days of the Effective Date,
Respondent shall provide public notice, for the failure to submit the Level 2
assessment listed in Paragraph 7 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 violations accompany this Agreed Order.
4.
Immediately upon the Effective Date, for future
violations, Respondent shall provide public notice to the State within 10 days
and notify the public pursuant to 327 IAC 8-2.1-7(d)(4).
5.
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 6 or via email
to tisaacs@idem.in.gov.
6.
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 |
7.
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
complete the Level 2 assessment and/or submit the form to IDEM within the
required time period. |
$250 per
week late or part thereof. |
2 |
Failure to
complete corrective actions for sanitary defects in accordance with the
proposed timetable. |
$300 per
corrective action. |
3 |
Failure to
comply with any or all of the requirements of this
paragraph. |
$300 per
week, or part thereof, past the 30-day deadline. |
4 |
If
applicable, failure to provide public notice. |
$300 per
week, or part thereof. |
5 |
Failure to
submit the “System Basic Information Summary” document in the manner
specified. |
$100 per
week, or part thereof. |
8.
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.
9.
Stipulated penalties are payable by check to
the “Environmental Management Special Fund.” Checks shall include the Case
Number 2020-26940-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 |
10.
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.
11.
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.
12.
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.
13.
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.
14.
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.
15.
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.
16.
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.
17.
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.
18.
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 |
Arlington Avenue Baptist Church 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 September
23, 2020 |
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Martha Clark Mettler |
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Assistant Commissioner |
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Office of Water Quality |