STATE OF INDIANA

COUNTY OF MARION

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BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v.

Town of Boswell,

Respondent.

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Case No. 2020-27141-D

 

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.          Town of Boswell (Respondent) owns and/or operates a community public water system (PWS) with PWSID No. IN5204002, serving 750 persons. The PWS is located at 504 N Old US HWY 41, Boswell, Benton 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:

 

Jake Foster, Town Council President

Town of Boswell

1084 East Main St. P.O. Box 617

Boswell, IN 47921

 

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 327 IAC 8-4.1-16(a)(2)(C), to have Phase II of a Wellhead Protection Program (WHPP) approved, materials must be submitted within ten (10) years after IDEM approval of Phase I material for a small Community Public Water Supply System (CPWSS).

 

IDEM records indicate that on December 13, 2002, IDEM formally reviewed and approved Respondent’s Phase I WHPP for its CPWSS. The records further indicate that Respondent did not submit a Phase II WHPP by December 13, 2012, as indicated in the Phase I approval letter. IDEM sent a Phase II WHPP Workshop Notification on March 10, 2014. IDEM sent Phase II WHPP Past Due Notifications on April 14, 2016; June 22, 2018; and January 21, 2020. To date, IDEM has not received a Phase II WHPP from Respondent, in violation of 327 IAC 8-4.1-16(a)(2)(C).

 

7.          Pursuant to 327 IAC 8-2-44(d), a water system shall deliver a consumer notice of lead tap water monitoring results to persons served by the water system at sites that are tested. A water system shall provide the consumer notification as soon as practical but, not later than 30 days after the system learns of the lead tap water monitoring results.

 

IDEM records indicate that Respondent failed to provide a consumer notification to persons served at the tap tested for lead in 2018 and 2019, in violation of 327 IAC 8-2-44(d).

 

8.          Pursuant to 327 IAC 8-2.1-5(c), all community water systems are required to submit a Consumer Confidence Report (CCR) Certification by October 1 of each year certifying that the CCR has been distributed to its customers.

 

IDEM records indicate Respondent failed to submit a CCR Certification for 2019 to IDEM, in violation of 327 IAC 8-2.1-5(c).

 

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 6 through 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 60 days of the Effective Date, Respondent shall submit to IDEM the material required by Indiana's Wellhead Protection Rule, 327 IAC 8-4.1-9, for the Phase II WHPP. Respondent shall develop and submit the Phase II WHPP materials that contain the following core elements:

 

a.                    Comprehensive WHPP.

b.                    Proof of Phase I WHPP Implementation.

c.          Updated schedule of implementation.

d.          Updated wellhead protection area (WHPA), considering new data if any.

e.          Updated potential sources of contamination inventory including a map.

f.           Report of any problems or concerns regarding WHPP.

g.          Contingency plan revisions (if needed).

h.          Documentation to confirm:

i.        Sanitary Setback Area meets requirements.

ii.        Abandoned wells are identified.

iii.       Wellhead is secured from unauthorized access.

iv.       All potential sources of contamination within the WHPA are managed.

v.       Public education is ongoing.

vi.       Any new ground water contamination within the WHPA is reported.

 

3.          Within 30 days of the Effective Date, Respondent shall deliver the Consumer Notice of Lead Results in Drinking Water form (attached) to persons served by the water system at the specific sites that were tested in 2018 and 2019.

 

4.          Within 10 days of issuing the 2018 and 2019 Consumer Notice of Lead Results in Drinking Water form to persons served by the PWS, Respondent shall send to IDEM a signed Certification Form for Consumer Notice of Lead Results (attached).

 

5.          Within 30 days of the Effective Date, Respondent shall submit the CCR Certification for 2019 and 2020 to IDEM, certifying that the CCR has been distributed to its customers.

 

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:

 

David Koehler, Enforcement Case Manager

Office of Water Quality – IGCN 1255

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

8.          Respondent is assessed and agrees to pay a civil penalty of Four Hundred Forty Dollars ($440). 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.          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 a Phase II WHPP to IDEM.

$500 per week, or part thereof.

3

Failure to deliver the Consumer Notice of Lead Results in Drinking Water form to persons served.

$300 per week, or part thereof.

4

Failure to send to IDEM the Certification Form for Consumer Notice of Lead Results.

$300 per week, or part thereof.

5

Failure to submit the CCR certifications to IDEM.

$300 per week late, or part thereof.

6

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.      Civil and stipulated penalties are payable by check to the “Environmental Management Special Fund.” Checks shall include the Case Number 2020-27141-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

 

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.

 

TECHNICAL RECOMMENDATION:

RESPONDENT:

Department of Environmental Management

Town of Boswell

 

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 October 22, 2020

 

Martha Clark Mettler

 

Assistant Commissioner

 

Office of Water Quality