STATE OF INDIANA |
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BEFORE THE INDIANA DEPARTMENT OF |
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ENVIRONMENTAL MANAGEMENT |
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COUNTY OF MARION |
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COMMISSIONER OF THE DEPARTMENT |
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OF ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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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 |
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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 February 5, 2019 |
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Martha Clark Mettler |
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Assistant Commissioner |
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Office of Water Quality |