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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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 |
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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 March 15, 2019 |
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Martha Clark Mettler |
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Assistant Commissioner |
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Office of Water Quality |