STATE OF INDIANA |
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BEFORE THE INDIANA DEPARTMENT |
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COMMISSIONER OF THE DEPARTMENT Complainant, v. Jennie Rae’s LLC 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.
Jennie Rae’s LLC (Respondent) owns
and/or operates a transient
non-community public water system (PWS) with PWSID No. IN2464094, serving 130
persons. The PWS is located at 5201 US Highway 20,
Rolling Prairie, La Porte 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:
Jennifer Baltes,
Owner |
Charles Sauers |
Jennie Rae’s LLC |
Arpey Management LLC |
8409 North 300 East |
1900 East Lincolnway |
Rolling Prairie, IN 46371 |
La Porte, IN 46350 |
Angela F. Smoker, Registered Agent |
CPA PC |
3340 Monroe Street |
Suite B |
La Porte, IN 46350 |
5. 327 Indiana
Administrative Code (IAC) 8-2-2 states each PWS shall comply with all
provisions of this rule and 327 IAC 8-2.1.
6. 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 at least
one total coliform sample from the PWS during the third quarter of 2017 and the
first quarter of 2018, in violation of 40 CFR 141.854(b) and 40 CFR 141.860(c)(1).
7.
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 in June 2018. IDEM
records indicate Respondent failed to monitor at least one total coliform
sample from the PWS during the months of June, July, August, September,
October, November, December 2018, and January 2019,in violation of 40 CFR 141.854(f) and 40 CFR 141.860(c)(1).
8. 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, 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:
a. 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 third quarter of 2017 and the first quarter of
2018; and
b. failed
to notify persons served by the PWS of the failure to monitor at least one
total coliform sample from the PWS for the months of June, July, August, September, October, November, December 2018,
and January 2019, each in violation of 40
CFR 141.861(a)(4) and 327 IAC 8-2.1-7.
9. 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 6 through 8 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 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).
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.
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.
4. Within 30 days
of the Effective Date, Respondent shall provide public notice, for the past
total coliform monitoring violations listed in Paragraph 8 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.
5. Immediately
upon the Effective Date, for future monitoring 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.
6.
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 7.
7.
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 |
8. 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 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 |
Failure to comply with any or all
of the requirements of this paragraph. |
$250 per week, or part thereof,
past the 30-day deadline. |
5 |
If applicable, failure to provide public notice. |
$250 per week, or part thereof. |
6 |
Failure to submit the “System
Basic Information Summary” document in the manner specified. |
$100 per week, or part thereof. |
9.
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.
10.
Penalties are payable by check to
the “Environmental Management Special Fund.” Checks shall include the Case
Number 2018-25673-D, of this action and shall be mailed to:
Indiana
Department of Environmental Management |
Accounts
Receivable |
IGCN, Room 1340 |
100 North
Senate Avenue |
11.
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.
12.
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.
13.
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.
14.
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.
15.
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.
16.
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.
17.
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.
18.
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.
19.
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 |
Jennie Rae’s 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 January 22, 2020 |
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Martha Clark Mettler |
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Assistant Commissioner |
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Office of Water Quality |