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STATE OF INDIANA |
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BEFORE THE INDIANA DEPARTMENT |
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COMMISSIONER OF THE DEPARTMENT Complainant, v. Roger McConnell D/B/A Raccoon Lakeside Lodge, 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.
Roger McConnell d/b/a Raccoon Lakeside Lodge
(Respondent) owns and/or operates a seasonal
non-transient non-community public water system (PWS) with PWSID No. IN2610006,
serving 61 persons, which is in operation from March 1 to November 30,
annually. 9469
East Paw Paw/ Raccoon Lodge Rd, Rockville, Park 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:
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Roger
McConnell dba Raccoon Lakeside Lodge |
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Raccoon
Lakeside Lodge |
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9469 East PawPaw/ Raccoon Lodge Rd. |
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Rockville, IN
47872 |
5.
Pursuant to 327 Indiana Administrative Code
(IAC) 8-2-2, each PWS 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 sample siting plan that
identifies sampling sites and a sample collection schedule 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 sample siting plan. Monitoring
required by subparts 141.854 through 141.858 may take place at 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 subpart S must be reflected in the sampling plan.
IDEM
records indicate that Respondent failed to submit a site sampling plan by March
31, 2016, and IDEM has not received a site sampling plan from Respondent to
date, in violation of 40 CFR 141.853(a).
After an onsite inspection, Respondent submitted a site sampling plan.
8.
Pursuant
to 40 CFR 141.854(i)(1), beginning April 1, 2016, all
seasonal systems must demonstrate completion of a State-approved start-up
procedure, which may include a requirement for startup sampling prior to
serving water to the public.
Pursuant
to 40 CFR 141.860(b)(2), a treatment technique
violation occurs when a seasonal system fails to complete a State-approved
start-up procedure prior to serving water to the public.
Pursuant
to 40 CFR 141.860(d)(3), failure to submit
certification of completion of a State-approved start-up procedure by a seasonal
system is a violation.
IDEM
records indicate Respondent failed to submit certification of completion of the
State-approved start-up procedure prior to the start of seasonal operation on
April 1, 2018, in violation of 40 CFR 141.854(i)(1), 40 CFR 141.860(b)(2), and 40 CFR 141.860(d)(3). After
an onsite inspection, Respondent submitted seasonal start-up forms.
9. Pursuant to 40 CFR 141.854(b), a
non-community PWS using ground water only and serving 1,000 or fewer people
must monitor for total coliform each calendar quarter that the system provides
water to the public.
Pursuant to 40 CFR 141.860(c)(1),
failure to take every required routine or additional routine sample in a
compliance period is a monitoring violation.
IDEM records indicate Respondent failed to monitor and
report at least one total coliform sample from the PWS during the second and
fourth quarters of 2016, in violation of 40 CFR 141.854(b) and 40 CFR
141.860(c)(1).
10. Pursuant to 40 CFR 141.854(f), a system
on quarterly or annual monitoring that experiences any of the events identified
in paragraphs (f)(1) through (f)(4) of this section must begin monthly
monitoring the month following the event. The system must continue monthly or
quarterly monitoring until the requirements in paragraph (g) of this section
for quarterly monitoring or paragraph (h) of this section for annual monitoring
are met.
Pursuant to 40 CFR 141.860(c)(1),
failure to take every required routine or additional routine sample in a
compliance period is a monitoring violation.
Respondent had two subpart Y monitoring violations in a
rolling 12-month period. Respondent was
required to begin monthly monitoring for total coliform February, 2017. IDEM records indicate Respondent failed to
monitor and report at least one total coliform sample from the PWS during the
months of March, April, May, June, August, September, October, and November
2017 and January, April, June, and July 2018, in violation of 40 CFR 141.854(f)
and 40 CFR 141.860(c)(1).
11.
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 subpart Q of this part.
Pursuant to 327 IAC 8-2.1-7(b)(1)(C), 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 collect at least one total coliform sample from the PWS,
required pursuant to 40 CFR 141.854(i)(2), second and fourth quarters of 2016 and the months
of March, April, May, June, July, August, September, October, November and
December 2017, and January, April, June, and July 2018; each in
violation of 40
CFR 141.861(a)(4) and 327
IAC 8-2.1-7(b)(1)(C).
12.
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 and 13 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 15 days of commencing seasonal operation
at the Site or within 15 days from the Effective Date, if seasonal operation
has commenced, Respondent shall, for the purposes of this Order, monitor and
report at least one total coliform sample in the PWS per month for six (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(i)(2).
3.
If the results of any sample for total coliform
indicate a positive result, the following actions shall be taken:
A.
Further analyze the positive sample for E. coli;
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.
Respondent
shall be subject to stipulated penalties for failure to complete any
requirements in accordance with IDEM’s notification(s), following a MCL
exceedance.
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) and
327 IAC 8-2.1-7.
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.
6.
All submittals required by this Agreed Order,
unless Respondent is notified otherwise in writing by IDEM, shall be sent to:
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Olivia Kuss,
Enforcement Case Manager |
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Office of
Water Quality – IGCN 1255 |
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Indiana
Department of Environmental Management |
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100 North
Senate Avenue |
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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:
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Paragraph: |
Violation: |
Stipulated
Penalty: |
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2 |
Failure to
monitor total coliform for 6 consecutive months of operation. |
$200 per
sample missed. |
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3 |
Failure to
comply with any or all of the requirements of this paragraph. |
$250 per
week for violation of any part of this requirement. |
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4 |
Failure to
provide public notice. |
$200 per
week, or part thereof. |
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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.
Civil and stipulated penalties are payable by
check to the “Environmental Management Special Fund.” Checks shall include the
Case Number 2018-25279-D, of this action and shall be mailed to:
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Office
of Legal Counsel |
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Indiana
Department of Environmental Management |
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IGCN,
Room N1307 |
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100
North Senate Avenue |
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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.
12.
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.
13.
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.
14.
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.
15.
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.
16.
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.
17.
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.
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TECHNICAL
RECOMMENDATION: |
RESPONDENT: |
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Department
of Environmental Management |
Roger
McConnell d/b/a Raccoon Lakeside Lodge |
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By:____________________________ |
By:________________________ |
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Samantha K.
Groce, Chief |
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Water
Enforcement Section |
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Surface Water, Operations & |
Printed:_____________________ |
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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
April 1, 2019 |
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Martha
Clark Mettler |
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Assistant
Commissioner |
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Office
of Water Quality |