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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. 3687 North Barbee Road 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.
3687 North Barbee Road LLC (Respondent) owns
and/or operates a transient
non-community public water system (PWS) with PWSID No. IN2430245, serving 28
persons at Barbee Landing. The PWS is located at 3687 North Barbee Road,
Warsaw, Kosciusko 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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Joel Stein,
Owner and Registered Agent |
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3687 North
Barbee Road LLC |
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102 South
Wabash Street |
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Wabash, Indiana 46992 |
5.
327 Indiana Administrative Code (IAC) 8-2-2
states that 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).
Respondent submitted the site sampling
plan to IDEM on February 26, 2019.
Pursuant to 40 CFR 141.858(a)(1), if a
sample taken under 40 CFR 141.854 through 141.857 is total coliform-positive,
the system must collect a set of repeat samples within 24 hours of being
notified of the positive result. The system must collect no fewer than three
repeat samples for each total coliform-positive sample found.
Pursuant to 40 CFR 141.402(a)(2) and 327
IAC 8-2.3-4(a)(2), a ground water system must collect, within 24 hours of
notification of the total coliform-positive sample, at least one ground water
source sample from each ground water source in use at the time the total
coliform-positive sample was collected.
Pursuant to 40 CFR 141.859(b)(3), PWS
must conduct a Level 1 assessment consistent with State requirements if the
system exceeds one of the treatment technique triggers in 40 CFR 141.859(a)(1).
IDEM records indicate Respondent failed
to take every required repeat sample, a Level 1 treatment technique trigger,
and at least one ground water source sample after the total coliform-positive
sample on June 30, 2017, in violation of 40 CFR 141.858(a)(1), 40 CFR
141.402(a)(2), and 327 IAC 8-2.3-4(a)(2).
Respondent triggered a Level 1
assessment pursuant to 40 CFR 141.859(b)(3).
Pursuant to 40 CFR 141.859(b)(3)(i), the
system must submit the completed Level 1 assessment form to the State within 30
days after the system learns that it has exceeded a trigger.
Respondent triggered a Level 1
assessment on June 30, 2017. Respondent failed to complete and submit the Level 1
Assessment form within 30 days after the system learned that it has exceeded a
trigger, in violation of 40 CFR 141.859(b)(3)(i).
Respondnet submitted the Level 1
Assessment from to IDEM on February 26, 2019.
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 January, February, March, April, May, June, July, August, September,
October, November, and December 2018, in violation of 40 CFR 141.860(c)(1).
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:
A.
at least one total coliform sample from the PWS,
required pursuant to 40 CFR
141.860(c)(1), during the months of
January, February, March, April, May, June, July, August, September, October,
November, and December 2018, each in violation of 40 CFR 141.861(a)(4) and 327 IAC 8-2.1-7; and
B.
one ground water source sample after the total
coliform-positive sample on June 30, 2017.
Respondent
submitted the public notice from to IDEM on February 26, 2019.
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 through 11 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.
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 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.
4.
Within 30 days of the Effective Date,
Respondent shall collect at least one ground water source sample from each
ground water source in use at the time of the total coliform-positive sample.
5.
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.
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 10.
7.
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 |
8.
Respondent shall pay a civil penalty of Seven
Hundred Sixty-five Dollars ($765). Said penalty amount shall be paid in 3-consecutive
monthly payments. The first payment in the amount of Two Hundred Fifty-five
Dollars ($255) shall be due within 30 days of receipt of this correspondence.
The remaining amount of Five Hundred Tens Dollars ($510) shall be due in 2-consecutive
monthly payments of Two Hundred Fifty-five Dollars ($255), the 30th day of each
month being the “Due Date.” Interest shall accrue on unpaid amounts at the rate
established by Indiana Code 24-4.6-1-101.
9.
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 and report required samples. |
$250 per
violation. |
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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. |
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4 |
Failure to
collect ground water source sample. |
$300 per
sample missed. |
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5 |
If
applicable, failure to provide public
notice. |
$250 per
week, or part thereof. |
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6 |
Failure to
submit the “System Basic Information Summary” document in the manner
specified. |
$100 per
week, or part thereof. |
10. 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.
11. Civil and
stipulated penalties are payable by check to the “Environmental Management
Special Fund.” Checks shall include the Case Number 2018-25758-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 |
12.
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.
13.
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.
14.
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.
15.
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.
16.
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.
17.
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.
18.
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.
19.
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.
20.
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 |
3687
North Barbee Road LLC |
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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
May 9, 2019 |
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Martha
Clark Mettler |
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Assistant
Commissioner |
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Office
of Water Quality |