STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT

) SS: OF ENVIRONMENTAL MANAGEMENT

COUNTY OF MARION )

COMMISSIONER OF THE DEPARTMENT )

OF ENVIRONMENTAL MANAGEMENT, )

)

Complainant, )

)

v. ) Case Nos. 2001-10691-W

) 2001-11511-W

RED BARN LEARNING CORPORATION, )

)

and )

)

STARZ ACADEMY, INC., )

)

Respondents. )

 

AGREED ORDER

The Complainant and the Respondents 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.

I. FINDINGS OF FACT

1. Complainant is the Commissioner (hereinafter referred to as the AComplainant@) of the Indiana Department of Environmental Management, a department of the State of Indiana created by IC 13-13-1-1.

2. The Respondents are Red Barn Learning Corporation ("Respondent 1"), Case No. 2001-10691-W and Starz Academy, Inc. ("Respondent 2"), Case No. 2001-11511-W, (the ARespondents@), which own and operate a nontransient noncommunity public water supply system (PWS) operating under PWS ID# 2710804, located at Starz Academy Facility No. 3, 13377 State Road 23, in Granger, St. Joseph County, Indiana (ASite@), which serves 125 customers. The Respondents’ PWS is classified as a small distribution system (DSS), which uses groundwater that is not under the direct influence of surface water as a source of supply.

3. The Indiana Department of Environmental Management (AIDEM@) has jurisdiction over the parties and the subject matter of this action.

4. Pursuant to IC 13-30-3-3, on January 4, 2002, IDEM issued a Notice of Violation (NOV) via Certified Mail to Red Barn Learning Corporation as the only Respondent:

Mr. James T. Treat, President

Red Barn Learning Corporation

Starz Academy

3091 Yankee Street

Niles, MI 49120
 

and
 

Drywall Service & Supply Inc., Registered Agent

Red Barn Learning Corporation

Starz Academy

4181 Fir Road

Mishawaka, IN 46545

A settlement conference was conducted on January 29, 2002, during which time Starz Academy, Inc. was determined to be a Respondent regarding this matter. IDEM will issue future correspondence to the following Respondents’ addresses:

Mr. James T. Treat, President

Red Barn Learning Corporation

Starz Academy Facility No. 3

3091 Yankee Street

Niles, MI 49120

and
 

Mr. James A. Masters, Incorporator

Starz Academy, Inc.

Starz Academy Facility No. 3

600 Century Building

215 South St. Joseph Street

South Bend, IN 46601

and
 

Drywall Service & Supply Inc., Registered Agent

Red Barn Learning Corporation

4181 Fir Road

Mishawaka, IN 46545
 

and

Ms. Angela E. Merrill, Registered Agent

Starz Academy, Inc.

4181 Fir Road

Mishawaka, IN 46545
 

    1. 327 IAC 8-2-1(9) and (10) establish the following three Compliance Periods, within the nine year Compliance Cycle, which are used to schedule monitoring requirements for public water systems:

Compliance Period

Dates

First Compliance Period

January 1, 1993—December 31, 1995

Second Compliance Period

January 1, 1996—December 31, 1998

Third Compliance Period

January 1, 1999—December 31, 2001

6. Pursuant to 327 IAC 8-2 requirements, the IDEM Drinking Water Branch established the following standard monitoring framework for the Respondents’ PWS:

REGULATED

Contaminants

Third Compliance Period

1999

2000

2001

VOCs

Annual *

SOCs **

Annual

IOCs

Annual

Asbestos

Waived until 2004.

PCBs & Dioxin

Waived for the compliance cycle

1994 - 2001.

Nitrate

Annual

Annual

Annual

Nitrite

Test performed as required during First Compliance Period.

*

Regulated and Unregulated VOCs are required in 2000.

**

Includes Pesticides

 

 

 

UNREGULATED

Contaminants

Third Compliance Period

1999

2000

2001

VOCs

Annual*

*

Regulated and Unregulated VOCs are required in 2000.

 

Other Monitoring

Requirements

1999

2000

2001

Bacteriological

1 per calendar quarter

1 per calendar quarter

1 per calendar quarter

Lead & Copper

Contact Lilia Park at 317/308-3297 with questions concerning your lead & copper monitoring requirements.

7. A designated representative of IDEM’s Drinking Water Branch (DWB), Inspection Section conducted a sanitary survey on May 3, 2000, at the Site. A record review was conducted in July 2001 by a designated IDEM DWB representative. A settlement conference was conducted on January 29, 2002, with representatives of IDEM=s DWB and the Office of Enforcement, and with representatives of the Respondents. Based upon the discussion of the NOV findings and submission of test results during the Settlement Conference, the violations as originally cited have been modified as follows:

    1. Pursuant to 327 IAC 8-2-8, the Respondents shall monitor and report once per calendar quarter, total coliform (TCR) samples at sites which are representative of water throughout the distribution system. The Respondents’ outstanding TCR violations are the first (Q1), third (Q3), and fourth (Q4) calendar quarters of 2000, and the first (Q1), second (Q2), and fourth (Q4) calendar quarters of 2001, in violation of 327 IAC 8-2-8.

    1. Pursuant to 327 IAC 8-2-4.1(f), the Respondents shall monitor annually to determine compliance with the maximum contaminant level (MCL) for nitrate. The Respondents’ outstanding nitrate violation is for the calendar year 2001, in violation of 327 IAC 8-2-4.1(f).

    2. Pursuant to 327 IAC 8-2-4.1, the Respondents shall monitor once per compliance period, as established in the standard monitoring framework, to determine compliance with the MCLs for Inorganic Compounds (IOCs) for antimony, asbestos, barium, beryllium, cadmium, chromium, cyanide (free), fluoride, mercury, selenium, and thallium. The Respondents resolved this violation through submission of the IOC MCL results for the third compliance period, following the issuance of the NOV. The Respondents’ waiver for asbestos is effective until 2004.

    3. Pursuant to 327 IAC 8-2-5.5, the Respondents are required to monitor, once per compliance period, for regulated and unregulated Volatile Organic Compounds (VOCs), in order to determine compliance with section 5.4 of this rule. The Respondents resolved this violation through submission of the VOC results for the third compliance period, following the issuance of the NOV.

    1. Pursuant to 327 IAC 8-2.1-7 through 327 IAC 8-2.1-11 (327 IAC 8-2-15 prior to November 20, 2001), a PWS which fails to comply with the applicable MCL or treatment technique established by this rule, or which fails to comply with the requirements of its prescribed schedule pursuant to a variance or exemption, is required to notify persons (publicly notify or "PN") served by the system by mail or hand delivery no later than three months after the violation or failure.

The Respondents failed to provide public notification for the following:

    1. TCR for the first (Q1), third (Q3), and fourth (Q4) calendar quarters of 2000, and the first (Q1), second (Q2), and fourth (Q4) calendar quarters of 2001;

    2. Nitrate for the year 2001; and

    3. IOCs, VOCs, and SOCs for the third compliance period;

in violation of 327 IAC 8-2.1-7 through 327 IAC 8-2.1-11 (327 IAC 8-2-15 prior to November 20, 2001).

    1. Pursuant to 327 IAC 8-2-13(a), a PWS shall, except where a shorter period is specified in this rule, report to the commissioner the results of any test measurement or analysis required by this rule within:

1. the first 10 days following the month in which the result is received; or

2. the first 10 days following the end of the required monitoring period as stipulated by the commissioner, whichever is shorter.

Subsequent to the information disclosed following the Settlement Conference, the Respondents’ representatives submitted results for the violations cited in Paragraphs A-E. However, the Respondents’ outstanding violations remain for failure to submit results to the commissioner within the first 10 days following the end of each required monitoring period, in violation of 327 IAC 8-2-13(a), as follows:

    1. TCR results for the first (Q1), third (Q3), and fourth (Q4) calendar quarters of 2000, and the first (Q1), second (Q2), and fourth (Q4) calendar quarters of 2001.

    2. Annual Nitrate results for the years 2000 and 2001.

    3. IOCs, VOCs, and SOCs results for the third compliance period.

8. On March 21, 2001, the IDEM DWB issued a Warning of Noncompliance (WONC) letter to Starz Academy PWS (the Site), for violating the requirements of federal and state drinking water rules.

    1. In recognition of the settlement reached, the Respondents waive any right to administrative and judicial review of this Agreed Order.

 

II. ORDER

1. This Agreed Order shall be effective (hereinafter referred to as the "Effective Date") when it is approved by the Complainant or her delegate, and has been received by the Respondents. This Agreed Order shall have no force or effect until the Effective Date.

2. The Respondents shall comply with all applicable provisions of the Indiana Code ("IC"), Indiana Administrative Code ("IAC"), including, but not limited to, 327 IAC 8-2-8(c), 327 IAC 8-2-4.1(f), 327 IAC 8-2-4.1(e), 327 IAC 8-2-5.5, 327 IAC 8-2-5.1, 327 IAC 8-2.1-7 through 327 IAC 8-2.1-11 (327 IAC 8-2-15 prior to November 20, 2001), and 327 IAC 8-12.

3. Immediately, upon the Effective Date of this Order, the Respondents shall take all necessary steps to continuously operate and maintain the PWS so that water is safe in quality, clean and adequate in quantity, and chemically satisfactory for ordinary domestic consumption, in accordance with 327 IAC 8-2.

4. The Respondents shall, at all times, employ a Certified Operator who is qualified and licensed in the state of Indiana, to properly operate the PWS including, but not limited to system monitoring, maintenance of the drinking water well and the distribution system, and necessary sampling, in accordance with 327 IAC 8-12. The Respondents shall notify IDEM if a new/different certified operator is employed as the operator in responsible charge, by submitting the name and certification number of the new/different operator in responsible charge to both IDEM’s Drinking Water Branch (DWB) and to IDEM’s Office of Enforcement (OE).

5. Within 30 days of the Effective Date of this Order, the Respondents shall begin collecting routine TCR samples for the PWS at sites which are representative of water throughout the distribution system on a quarterly basis, in accordance with 327 IAC 8-2-8. The Respondents shall submit a copy of the TCR results to IDEM’s DWB and to OE for two consecutive years, to meet the requirements of this Order.

6. Within 30 days of the Effective Date of this Order, the Respondents shall begin collecting nitrate samples from each entry point into the distribution system of Starz Academy PWS on a quarterly basis, in accordance with 327 IAC 8-2-4.1(f). The Respondents’ PWS nitrate test results from January 25, 2002, indicated the presence of nitrate contaminants greater than 50% of the MCL, therefore the Respondents’ PWS is required to increase nitrate sampling frequency to a quarterly basis for at least one year, in accordance with 327 IAC 8-2-4.1(f)(2). The commissioner may allow a ground water system to reduce the sampling frequency to annually after four consecutive quarterly samples are reliably and consistently less than the MCL. The Respondents shall submit a copy of required nitrate results to IDEM’s DWB and to OE for two consecutive years, to meet the requirements of this Order.

7. Within 30 days of the Effective Date of this Order, the Respondents shall begin collecting Inorganic Compound (IOC) samples from each entry point into the distribution system of Starz Academy PWS on an annual basis, in accordance with 327 IAC 8-2-4.1. The Respondents shall submit a copy of the IOC results to IDEM’s DWB and to OE for two consecutive years, to meet the requirements of this Order.

8. Within 30 days of the Effective Date of this Order, the Respondents shall begin collecting Volatile Organic Compound (VOC) samples from each entry point into the distribution system of Starz Academy PWS on an annual basis, in accordance with 327 IAC 8-2-5.5. The Respondents shall submit a copy of the VOC results to IDEM’s DWB and to OE for two consecutive years, to meet the requirements of this Order.

9. Immediately, upon the Effective Date of this Order, the Respondents shall perform public notification, in accordance with 327 IAC 8-2.1-7 through 327 IAC 8-2.1-11 (327 IAC 8-2-15 prior to November 20, 2001). The Respondents shall notify the people served by the Starz Academy PWS distribution system of the failure to comply with sampling requirements, including but not limited to the following monitoring and reporting requirements:

A. Total Coliform sampling;

B. Nitrate maximum contaminant level;

C. IOCs maximum contaminant level;

D. VOCs maximum contaminant level; and

E. SOCs maximum contaminant level.

The Respondents shall implement public notification requirements, in accordance with 327 IAC 8-2.1-7 through 327 IAC 8-2.1-11 (327 IAC 8-2-15 prior to November 20, 2001). The Respondents shall submit a copy of the public notification submitted to persons served by their PWS distribution system to IDEM’s DWB and to OE.

10. All IDEM Office of Enforcement (OE) submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:

Ms. Stacie Tucker, Enforcement Case Manager

Office of Enforcement

Indiana Department of Environmental Management

100 N. Senate Avenue

P. O. Box 6015

Indianapolis, IN 46206-6015

11. The Respondents jointly and severally are assessed a civil penalty of Two Thousand, Eight Hundred, and Sixty-five Dollars ($2,865). Said penalty amount shall be due and payable to the Environmental Management Special Fund. The civil penalty shall be paid in the following manner:

A. The penalty shall be paid in 12 installments. The first installment shall be in the amount of Five Hundred Dollars ($500). The remaining 11 installments shall each be in the amount of Two Hundred and Fifteen Dollars ($215).

B. The first penalty installment amount shall be due and payable to the Environmental Management Special Fund within 30 days of the Effective Date of this Agreed Order.

C. One installment shall be due and payable no later than the 15th day of each month for the remaining 11 consecutive months following the Effective Date of this Agreed Order.

In the event that any installment of the Civil Penalty required by this paragraph is not paid in full according to the payment plan by its specified due date, the Respondents jointly and severally shall pay interest on the overdue, unpaid balance at the rate established by IC 24-4.6-1-101. The interest shall continue to accrue until the overdue, unpaid balance is paid in full.

12. In the event the terms and conditions of the following paragraphs are violated, the Complainant may assess and the Respondents jointly and severally shall pay a stipulated penalty in the following amount:

Order Paragraph Cited

Violation

Penalty due per violation

4

Failure to maintain the services of a certified operator in responsible charge

$500 per week, or part thereof, late

5

Failure to monitor and report TCR results once per calendar quarter as required, and to submit the reports in a timely manner.

$250 per month, or part thereof, late

6

Failure to monitor and report Nitrate results once per calendar quarter or annually as required, and to submit the reports in a timely manner.

$250 per month, or part thereof, late

7

Failure to monitor and report IOC results once per compliance period or annually as required, and to submit the reports in a timely manner.

$250 per month, or part thereof, late

8

Failure to monitor and report VOC results once per compliance period or annually as required, and to submit the reports in a timely manner.

$250 per month, or part thereof, late

9

Failure to post public notifications and submit copies to IDEM as required, and/or to post or submit the PNs in a timely manner.

$250 per month, or part thereof, late

 

13. Stipulated penalties shall be due and payable within 30 days after Respondents receive written notice that the Complainant has determined a stipulated penalty is due. Assessment and payment of stipulated penalties shall not preclude the Complainant from seeking any additional relief against the Respondents for violation of the Agreed Order. In lieu of any of the stipulated penalties given above, the Complainant may seek any other remedies or sanctions available by virtue of Respondents’ violation of this Agreed Order or Indiana law, including, but not limited to, civil penalties pursuant to IC 13-30-4. Respondents’ liability for stipulated penalties shall be joint and several.

14. Civil and stipulated penalties are payable by check to the Environmental Management Special Fund. Checks shall include the Case Number(s) of this action and shall be mailed to:

Cashier

Indiana Department of Environmental Management

100 N. Senate Avenue

P. O. Box 7060

Indianapolis, IN 46207-7060

15. This Agreed Order shall apply to and be binding upon the Respondents, their officers, directors, principals, agents, successors, subsidiaries, and assigns. The Respondents’ signatories to this Agreed Order certify that they are fully authorized to execute this document and legally bind the parties they represent. No change in ownership, corporate, or partnership status of the Respondents shall in any way alter the Respondents’ status or responsibilities under this Agreed Order.

    1. In the event that any terms of the 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 the Agreed Order did not contain the invalid terms.

    2. This Agreed Order is not and shall not be interpreted to be a Permit, or a modification of an existing Permit, nor shall it in any way relieve the Respondents of their obligation to comply with the requirements of any Permit or with any other applicable federal or state law or regulation.

    3. The Complainant does not, by its approval of this Agreed Order, warrant or aver in any manner that the Respondents’ compliance with any aspect of this Agreed Order will result in compliance with the provisions of the Clean Water Act, any Permit, or state law.

    4. The Respondents shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights are transferred. The Respondents shall ensure that all contractors, firms and other persons performing work under this Agreed Order comply with the terms of this Agreed Order.

    5. This Agreed Order shall remain in effect until IDEM issues Close-Out letters to the Respondents and until the Respondents comply with the terms of Order Paragraphs 3 through 14.

TECHNICAL RECOMMENDATION: RESPONDENT:

Department of Environmental Management Red Barn Learning Corporation

By: Signed by MARK W. STANIFER By: Signed by JAMES T. TREAT_______ Mark Stanifer Printed: James T. Treat

Chief, Water Section Title: President

Office of Enforcement Date: 10/02/2002_____________________

Date: 07/31/2002_________________

RESPONDENT:

Starz Academy, Inc.

By: Signed by ANGELA E. MERRILL___

Printed: Printed by ANGELA E. MERRILL

Title: Secretary of Starz Academy, Inc.____ Date: 10/08/2002______________________

COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENTS:

Department of Environmental Management Red Barn Learning Corporation

By: Signed by MARY ANN HABEEB By: ________________________________

Office of Legal Counsel Printed: _____________________________

Date: 10/31/2002_________________ Date: _______________________________

Starz Academy, Inc.

By: ________________________________

Printed: _____________________________

Date: _______________________________

 

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS __1___ DAY OF _November__, 2002.

 

 

For the Commissioner:

 

Signed by FELICIA A. ROBINSON_____

Felicia A. Robinson

Deputy Commissioner

for Legal Affairs