STATE OF INDIANA |
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BEFORE THE INDIANA DEPARTMENT |
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COMMISSIONER OF THE DEPARTMENT Complainant, v. Green
Acres MHP Lot 1079, 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.
Green
Acres MHP Lot 1079 LLC (Respondent) owns and/or operates a community public water system (PWS)
with PWSID No. IN5221003, serving 32 persons. The PWS is located at 1079 West County Road 475 South, Connersville,
Fayette County, Indiana (the Site).
3.
A Community Water System (CWS) as
defined by 327 IAC 8-2-1(12) is a PWS that serves at least fifteen (15) service
connections used by year-round residents or regularly serves at least
twenty-five (25) year-round residents.
4.
IDEM has jurisdiction over the
parties and the subject matter of this action pursuant to IC 13-30-3.
5.
Pursuant to IC 13-30-3 et seq., IDEM
issued a Notice of Violation via Certified Mail to:
Weaver Gibson, Owner |
Business Commercial Registered
Agent |
Green Acres MHP Lot 1079 LLC |
United States Corporation Agents,
Inc. |
1079 West County Road 475 South |
605 West Edison Suite D |
Connersville, IN 47331 |
Mishawaka, IN 46465 |
6.
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.
7.
Pursuant to 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.
IDEM records indicate that Respondent has failed to
designate a certified operator for the PWS since December 8, 2017. 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 after the departure of the previous
certified operator, in violation of IC 13-18-11-11(a) and 327 IAC 8-12-1.1.
8.
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 Paragraph 7 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 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.
3.
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 4.
4.
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 |
5.
Respondent is assessed and agrees to
pay a civil penalty of Three Thousand One Hundred Twenty Five Dollars ($3,125).
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.”
6.
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 appoint a competent
certified operator. |
$500 per week, or part thereof. |
2 |
Failure to submit a written notice
as required. |
$300 per week, or part thereof. |
3 |
Failure to submit the “System
Basic Information Summary” document in the manner specified. |
$100 per week, or part thereof. |
7.
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.
8.
Civil and stipulated penalties are
payable by check to the “Environmental Management Special Fund.” Checks shall
include the Case Number 2018-25703-D, of this action and shall be mailed to:
Office of Legal Counsel |
Indiana Department of
Environmental Management |
IGCN, Room N1307 |
100 North Senate Avenue |
Indianapolis, IN 46204 |
9.
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.
10.
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.
11.
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.
TECHNICAL RECOMMENDATION: |
RESPONDENT: |
Department of Environmental
Management |
GREEN ACRES MHP
LOT 1079, 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 May 21, 2019 |
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Martha Clark Mettler |
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Assistant Commissioner |
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Office of Water Quality |