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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. hazelden
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.
Hazelden LLC (Respondent) owns
and/or operates transient
non-community public water system (PWS) with PWSID No. IN2560020 serving 52
persons. The PWS is located at 3705 East State Road 16, Brook, Newton 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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Michael
Armstrong, Owner |
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Hazelden LLC |
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3705 East State
Road 16 |
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Brook, Indiana
47922 |
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).
8.
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 and
report at least one total coliform sample from the PWS during the third quarter
of 2017 and first quarter of 2018, in
violation of 40 CFR 141.854(b) and 40 CFR 141.860(c)(1).
9.
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 and report at least one total
coliform sample from the PWS during the months of June, July, September, and November
2018, in violation of 40 CFR 141.854(f) and 40 CFR 141.860(c)(1).
10. 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(b)(1)(C), 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 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, first quarter of 2018, and the
months of June,
July, September, and November 2018, each in
violation of 40 CFR
141.861(a)(4) and 327 IAC 8-2.1-7(b)(1)(C).
11.
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 10 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 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 10 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) and 327 IAC 8-2.1-7.
7.
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 8.
8.
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 |
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 submit or modify the
site sampling plan within the required time period. |
$100 per week late, or part
thereof. |
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3 |
Failure to monitor and report
required samples. |
$250 per violation. |
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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. |
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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. |
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6 |
If applicable, failure to provide public notice. |
$250 per week, or part thereof. |
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7 |
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.
Penalties are payable by check to
the “Environmental Management Special Fund.” Checks shall include the Case
Number 2018-25833-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 |
Hazelden 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 February 15, 2019 |
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Martha Clark Mettler |
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Assistant Commissioner |
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Office of Water Quality |