STATE OF INDIANA

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SS:

BEFORE THE INDIANA DEPARTMENT OF

 

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ENVIRONMENTAL MANAGEMENT

COUNTY OF MARION

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COMMISSIONER OF THE DEPARTMENT

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OF ENVIRONMENTAL MANAGEMENT,

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)

 

 

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Complainant,

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)

 

v.

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Case No. 2017-24673-D

 

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Red Oak Properties &

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Investments, LLC d/b/a Willow

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Springs Mobile home park,

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)

 

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.             Respondent is Red Oak Properties & Investments, LLC d/b/a Willow Springs Mobile Home Park which owns and operates a community public water system (PWS) with PWSID No. IN5252010, serving 35 persons. The PWS is located at 2943 W 300 S, in Peru, Miami 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 13-30-3-3, IDEM issued a Notice of Violation (NOV) via Certified Mail to David Cogell at 7428 West 100 North, Greenfield, IN 46140.

 

5.             Pursuant to 327 Indiana Administrative Code (IAC) 8-2-2, each public water system shall comply with all provisions of this rule and 327 IAC 8-2.1.

 

6.             40 Code of Federal Regulations (CFR) Part 141, Subpart Y (Revised Total Coliform Rule), was incorporated in a State emergency rule on February 10, 2016 (LSA #16-87E), which was effective February 12, 2016 through May 12, 2016. The State emergency rule was readopted May 12, 2016, August 11, 2016, and November 9, 2016. The applicable rule was incorporated into Indiana rules through the regular rulemaking process and became effective February 17, 2017. The federal Revised Total Coliform Rule is effective and applicable as adopted at 327 IAC 8-2.4-1.

 

7.             Pursuant to 40 CFR 141.853(a), all PWSs must develop a written site sampling plan that identifies a sample collection schedule and sampling sites that are representative of water throughout the distribution system not later than March 31, 2016. These plans are subject to State review and revision. Systems must collect total coliform samples according to the written site sampling plan. Monitoring required by 40 CFR 141.854 through 40 CFR 141.858 may take place on a customer’s premise, dedicated sampling station, or other designated compliance sampling location. Routine and repeat sample sites and any sampling points necessary to meet the requirements of 40 CFR 141 Subpart S must be reflected in the site sampling plan.

 

IDEM records indicate that Respondent failed to submit a site sampling plan by March 31, 2016, in violation of 40 CFR 141.853(a).

 

Respondent submitted the site sampling plan on August 17, 2017.

 

8.             Pursuant to 40 CFR 141.855(b), a community PWS using ground water only and serving 1,000 or fewer people must monitor for total coliform monthly.

 

IDEM records indicate Respondent failed to collect at least one total coliform sample from the PWS during February 2017 and January 2018, each in violation of 40 CFR 141.855.

 

9.             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.

 

IDEM records indicate that Respondent failed to notify persons served by the PWS of the failure to monitor at least one total coliform sample from the PWS, required pursuant to 40 CFR 141.854(b) and 40 CFR 141.854(f), during the months of February 2017, January, and May 2018, each in violation of 40 CFR 141.861(a)(4).

 

Respondent public noticed for the missed total coliform samples on November 24, 2018.

 

10.         Pursuant to 327 IAC 8-2-4.1(f), all PWSs shall monitor nitrate to determine compliance with the maximum contaminant level (MCL) for nitrate.

 

IDEM records indicate that Respondent failed to monitor for nitrate during the years of 2015 and 2016, in violation of 327 IAC 8-2-4.1(f).

 

Respondent monitored its PWS for 2017 nitrate on August 9, 2017.

Respondent monitored its PWS for 2018 nitrate on November 15, 2018.

 

11.         Pursuant to 327 IAC 8-2-37(c)(2), a PWS system serving 100 or less people is required to collect five (5) lead samples at the required representative sites between June 1- September 30, annually.

 

IDEM records indicate that for 2016 and 2017, Respondent failed to collect the required five (5) lead samples at the required representative sites within the required timeframe, June 1 – September 30, each in violation of 327 IAC 8-2-37(c)(2).

 

12.         Pursuant to 327 IAC 8-2.1-7, the owner or operator of a PWS which fails to perform monitoring is required to notify persons served by the PWS and the State within 10 days after the system discovers the violation.

 

IDEM records indicate that Respondent failed to notify persons served by the PWS and the State of the failure to perform nitrate monitoring during 2016, and failure to perform lead and copper monitoring in 2016 and 2017, each in violation of 327 IAC 8-2.1-7.

 

Respondent public noticed for the missed nitrate and lead and copper samples on November 24, 2018.

 

13.         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 2016, in violation of 327 IAC 8-2-44(d).

 

Respondent delivered the consumer notice of lead results from 2016 on November 24, 2018.

 

14.         Pursuant to 327 IAC 8-12-3.6 (b)(1), a community water system must have a certified operator on site for a minimum of two (2) daily visits every week.

 

Based on inspections done on August 2, 2017 and April 3, 2018, the Respondent’s Certified Operator in Responsible Charge (CORC) was not on site for a minimum of (2) daily visits every week, in violation of 327 IAC 8-12-3.6 (b)(1).

 

15.         A Commissioner’s Order was issued on September 14, 2018. Respondent received the Commissioner’s Order via hand-delivery on November 10, 2018.

 

16.         On November 14, 2018, IDEM received a phone call from Respondent regarding the Commissioner’s Order. As of January 10, 2019, Respondent is willing to comply with all Order requirements. A signed Agreed Order will supersede the Commissioner’s Order.

 

17.         In recognition of the settlement reached, Respondent 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 14 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 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.

 

4.             Immediately upon the Effective Date, for future monitoring and/or 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).

 

5.             Respondent shall, for the purposes of this Order, monitor nitrate at the entry point to the distribution system that is representative of each well after treatment by September 30, 2019. This will count as your 2019 annual nitrate sample.

 

It is the responsibility of Respondent to continue sampling nitrate annually, pursuant to 327 IAC 8-2-4.1(f).

 

6.             Respondent shall, for the purposes of this Order, collect five (5) lead samples between June 1 and September 30, 2019 at the required representative sites.

 

It is the responsibility of Respondent to continue sampling for lead and copper annually, pursuant to 327 IAC 8-2-37(c)(2).

 

7.             Within 30 days of receiving the 2019 lead and copper results, Respondent shall deliver the Consumer Notice Lead Results in Drinking Water Form to persons served by the water system.

 

8.             Within 10 days of issuing the 2019 Consumer Notice of Lead Results in Drinking Water Form to persons served by the water system, Respondent shall send IDEM a signed Certification Form for Consumer Notice of Lead Results.

 

9.             Within 10 days of becoming aware of a MCL exceedance, Respondent shall submit notification to IDEM of the MCL exceedance. Respondent shall complete all requirements to resolve the MCLs as instructed by IDEM’s notification(s).

 

10.         Within 60 days of the Effective Date, Respondent shall appoint a competent certified operator in responsible charge with a valid certification of a class appropriate for the plant or distribution system, and submit documentation to IDEM. The documentation shall include the certified operator’s name, a copy of their operator’s license, their contact information, and the effective date of the change in operator.

 

11.         All submittals required by this Order, unless notified otherwise in writing, shall be sent to:

 

Brandi Collignon, Enforcement Case Manager

Office of Water Quality – IGCN 1255

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

12.         Respondent is assessed a civil penalty of Two Thousand Eight Hundred and Eighty Dollars ($2,880). Said penalty amount shall be paid in eighteen (18) consecutive monthly payments. The first payment in the amount of One Hundred Sixty Dollars ($160) shall be due and payable to the “Environmental Management Special Fund” within 30 days of the Effective Date. The remaining amount of Two Thousand Seven Hundred and Twenty Dollars ($2,720) shall be due in seventeen (17) consecutive monthly payments of One Hundred Sixty Dollars ($160), with the final day of each month being the “Due Date.”

 

13.         In the event the terms and conditions of the following paragraphs are violated, IDEM may assess and Respondent shall pay the corresponding stipulated penalty:

 

Paragraph

Violation

Stipulated Penalty

2

Failure to monitor and report required samples.

$250 per violation.

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.

4

If applicable, failure to provide public notice.

$250 per week, or part thereof.

5

Failure to monitor and report required sample.

$350 per sample missed.

6

Failure to collect lead and copper samples.

$350 per sample missed.

7

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

$300 per week, or part thereof

8

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

$300 per week, or part thereof

9

Failure to comply with any part of this paragraph after a MCL exceedance.

$400 per week for violation of any part of this paragraph.

10

Failure to appoint a competent certified operator.

$500 per week, or part thereof.

10

Failure to submit a written notice as required.

$300 per week, or part thereof.

 

14.         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.

 

15.         Civil and stipulated penalties are payable by check to the “Environmental Management Special Fund.” Checks shall include the Case Number 2017-24673-D of this action and shall be mailed to:

 

Office of Legal Counsel

Indiana Department of Environmental Management

IGCN, Rm N1307

100 North Senate Avenue

Indianapolis, IN 46204

 

16.         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.

 

17.         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.

 

18.         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.

 

19.         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.

 

20.         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 their obligation to comply with the requirements of its applicable permits or any applicable Federal or State law or regulation.

 

21.         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.

 

22.         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.

 

23.         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.

 

24.         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.

 

TECHNICAL RECOMMENDATION:

RESPONDENT:

Department of Environmental Management

 

 

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 February 5, 2019

 

Martha Clark Mettler

 

Assistant Commissioner

 

Office of Water Quality