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,

)

 

 

)

 

 

)

 

Complainant,

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)

 

v.

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Case No.  2018-25468-D

 

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Nk holdings llc,

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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.        NK Holdings LLC, (Respondent) owns and/or operates a community public water system (PWS) with PWSID No. IN5201006, serving 50 persons. The PWS is located at 2950 West 1100 North, Lot# 36, Decatur, Adams 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:

 

Nick Kos, Owner

Justin R. Wall, Registered Agent

NK Holdings, LLC

NK Holdings, LLC

Oakridge Estates

Oakridge Estates

7857 Southwest 187th Terrace

309 N. Jefferson St.

Cutler Bay, FL  33157

Huntington, IN  46750

 

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), a PWS 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, and IDEM has not received a site sampling plan from Respondent to date, in violation of 40 CFR 141.853(a).

 

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 each calendar month 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 months of April, May, and June 2018, in violation of 40 CFR 141.855(b) and 40 CFR 141.860(c)(1).

 

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.

 

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. A copy of the public notice must also be sent to the Commissioner within 10 days after the completion of each public notice.

 

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 141.855(b) and 40 CFR 141.860(c)(1), during the month of April, May, and June 2018, in violation of 40 CFR 141.861(a)(4) and 327 IAC 8-2.1-7.

 

10.     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 2016 and 2017 to IDEM, in violation of 327 8-2.1-5(c).

 

8.        Pursuant to 327 IAC 8-2.1-2(a), an existing community water system is required to submit a Consumer Confidence Report (CCR) by July 1 annually.

 

IDEM records indicate Respondent failed to submit a CCR for 2016 and 2017 to its customers, in violation of 327 IAC 8-2.1-2(a).

 

9.        Pursuant to Indiana Code (IC) 13-18-11-11(a), all water or wastewater treatment plants and water distribution systems, whether publically or privately owned, must be under the supervision of an operator whose competency is certified by the commissioner in a classification corresponding to the classification of the plant or distribution system to be supervised.

Pursuant to 327 IAC 8-12-1.1, the owner or governing body of a water treatment plant or water distribution system shall be responsible to accomplish the following:

 

(1)  Place each water treatment facility and water distribution system under the direct supervision of a certified operator in responsible charge who:

(A)                        has a valid certification of a grade eligible for operation at the classification of water treatment facility or water distribution system of responsibility; and

(B)                        is available to make process control or system integrity decisions about water quality or quantity that affect public health.

(2)  Designate one (1) certified operator to have complete responsibility for the proper operation of the water treatment plant or water distribution system.

(3)  Assure that a minimum of one (1) operator certified according to this rule must be available for each operating shift.

(4)  Notify the commissioner of the name of the person designated according to subdivision (1) to be the certified operator in responsible charge.

(5)  Submit written notice to the commissioner no later than 30 days after the occurrence of one (1) of the following:

(A)                        A change in the person serving as the certified operator in responsible charge.

(B)                        A change in conditions or circumstances that were used as the basis for the original classification of the water treatment plant or water distribution system.

 

On April 9, 2018, IDEM received notification that the certified operator of record at the Site was no longer the certified operator.  Respondent failed to appoint a competent certified operator in responsible charge to operate and maintain the plant or distribution system, and failed to submit written notice to the commissioner within 30 days, in violation of IC 13-18-11-11(a) and 327 IAC 8-12-1.1.

 

10.     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 February 14, 2006, 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 February 14, 2016, as indicated in the Phase I approval letter. To date, IDEM has not received a Phase II WHPP from Respondent, in violation of 327 IAC 8-4.1-16(a)(2)(C).

14.     Pursuant to 327 IAC 8-2-8.2, IDEM shall evaluate each PWS during a sanitary survey to determine if deficiencies exist.

 

Pursuant to 327 IAC 8-2-8.2(f), significant deficiencies are conditions found during a sanitary survey that have a potential to cause an immediate risk to human health;  or any deficiency that was found during a previous sanitary survey but not has been corrected; or the PWS is not in compliance with a correction schedule approved by the commissioner.

 

On September 28, 2017, a sanitary survey was conducted by IDEM at the Site in which significant deficiencies were found.  An Inspection Summary Letter dated October 20, 2017, was sent to the Respondent requiring a written response to IDEM within 30 days.  No written response has been received to date.  Respondent has failed to correct the significant deficiencies and failed to meet the response due date, in violation of 327 IAC 8-2-8.2(f).

 

15.     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, 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 10 days of the Effective Date, Respondent shall develop and submit to IDEM for review a site sampling plan which identifies sampling sites and a sample collection schedule that are representative of water throughout the distribution system. The site sampling plan is subject to IDEM approval, in the event IDEM finds the site sampling plan submitted by Respondent deficient, Respondent shall revise and resubmit the plan, in accordance with IDEM’s notification(s).

 

Respondent, upon receipt of written notification from IDEM, shall immediately implement the approved site sampling plan, and collect all total coliform samples according to the approved written plan.

 

3.        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 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(f).

 

4.        If the results of any sample for total coliform required by Order Paragraph 3 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.

 

Respondent shall be subject to stipulated penalties for failure to complete any requirements in accordance with IDEM’s notification(s), following a Maximum Contaminant Level (MCL) exceedance.

 

5.             Within 30 days of the Effective Date, Respondent shall provide public notice, for the past total coliform monitoring and reporting violations listed in Paragraph 9 of the Findings of Facts above, by following these steps:

 

A.            Complete attached public notice and Certification form for public notice.

B.            Post public notice where the public has ready access for viewing, and for as long as the violation persists, but in no case less than seven days, even if the violation is resolved.

C.            Within 10 days of issuing the public notice, Respondent shall send to IDEM a signed Certification form for public notice and representative copy of the public notice issued. The forms that address the past total coliform monitoring violations accompany this Agreed Order.

 

6.             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).

 

7.             Within 30 days of the Effective Date, Respondent shall submit the CCR Certification for 2016 and 2017 to IDEM, certifying that the CCR has been distributed to its customers.

 

8.             Within 30 days of the Effective Date, Respondent shall submit the CCRs for 2016 and 2017 to IDEM, which include all CCR requirements for each year. The CCRs shall also be distributed to the customers.

 

9.             Within 30 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

 

10.         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.             Updated schedule of implementation.

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

d.             Updated potential sources of contamination inventory.

e.             Report of any problems or concerns regarding WHPP.

f.              Contingency plan revisions (if needed).

g.             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.

 

11.         Within 30 days of the Effective Date, Respondent shall address all deficiencies noted on Sanitary Survey, conducted on September 28, 2017, a copy of which is enclosed and submit a written detailed explanation documenting compliance with each of the requirements.

 

12.         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 13.

 

13.         All submittals required by this Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall be sent to:

 

Patrick Colcord, Enforcement Case Manager

Office of Water Quality – IGCN 1255

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

14.         Respondent is assessed and agrees to pay a civil penalty of Three Thousand Five Hundred Ninety Five Dollars ($3,595). 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.”

 

15.         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 or modify the site sampling plan within the required time period.

$100 per week late, or part thereof.

3

Failure to monitor and report required samples.

$250 per violation.

4

Failure to comply with any or all of the requirements of this paragraph.

$300 per week for violation of any part of this requirement.

5

Failure to comply with any or all of the requirements of this paragraph.

$250 per week, or part thereof, past the 30-day deadline.

6

If applicable, failure to provide public notice.

$250 per week, or part thereof.

7

Failure to submit the CCR certifications to IDEM.

$300 per week late, or part thereof.

8

Failure to submit the CCRs to IDEM and distribute the CCRs to the customers.

$300 per week late, or part thereof.

9

Failure to appoint a competent certified operator.

$500 per week, or part thereof.

9

Failure to submit a written notice as required.

$300 per week, or part thereof.

10

Failure to submit a Phase II WHPP to IDEM.

$200 per week, or part thereof.

11

Failure to submit a written response to the Sanitary Survey.

$250 per week, or part thereof

11

Failure to address all sanitary deficienies.

$200 per deficiency

12

Failure to submit the “System Basic Information Summary” document in the manner specified.

$100 per week, or part thereof.

 

16.         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.

 

17.         Civil and stipulated penalties are payable by check to the “Environmental Management Special Fund.” Checks shall include the Case Number 2018-25468-D, of this action and shall be mailed to:

 

Office of Legal Counsel

Indianapolis Department of Environmental Management

IGCN, Room N1307

100 North Senate Avenue

Indianapolis, IN 46204

 

 

18.         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.

 

19.         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.

 

20.         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.

 

21.         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.

 

22.         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.

 

23.         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.

 

24.         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.

 

25.         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.

 

26.         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

NK Holdings LLC

 

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 March 15, 2019

 

Martha Clark Mettler

 

Assistant Commissioner

 

Office of Water Quality