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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. Lincoln
Lodge Motel, Inc, 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.
Lincoln Lodge Motel, Inc (Respondent) owns and/or operates a transient non-community public water
system (PWS) with PWSID No. IN2790808, serving 65 persons. The PWS is located
at 11425 U.S. 52 South Highway, Clarks Hill, Tippecanoe 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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Maganbhai Patel, President |
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Lincoln Lodge
Motel, Inc. |
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11425 U.S. 52
South Highway |
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Clarks Hill,
Indiana 47930 |
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.
327 IAC 8-2-8.2 states IDEM shall evaluate each PWS during a
sanitary survey to determine if deficiencies exist.
7.
327 IAC 8-2-8.2(f) states
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.
8.
Pursuant to 327 IAC 8-2-8.2(h), PWSs
using ground water shall respond in writing to any deficiency found during a
sanitary survey that is reported to the PWS using ground water by the
commissioner. Response requirements are as follows:
1. The response must:
A. be made within thirty (30) days of
receipt of the report; and
B. indicate:
i.
how the PWS
will address deficiencies found during the sanitary survey; and
ii.
on what schedule the PWS will address deficiencies found
during the sanitary survey.
On December 11, 2018, a sanitary
survey was conducted by IDEM at the Site in which significant deficiencies were
found. An Inspection Summary Letter
dated December 18, 2018, 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 meet the response due date, in violation of 327
IAC 8-2-8.2(h).
On February 20, 2019, Respondent
responded to the Inspection Summary Letter.
9.
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 141.859(b)(3), a 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).
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.
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 collected
on June 28, 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).
On March 13, 2019, Respondent collected one ground water
source sample from the ground water source in use at the time of the June 28,
2017 total coliform-positive sample.
10.
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. 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).
On March 13, 2019, Respondent
completed and submitted the Level 1 Assessment form.
11.
Pursuant to 40 CFR 141.854(j), a PWS
on quarterly monitoring must collect at least three additional routine
monitoring samples the month following one or more total coliform-positive
samples.
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 collect three
additional routine monitoring samples from the PWS in July 2017, the month
following the total coliform-positive sample, in violation of 40 CFR 141.854(j)
and 40 CFR 141.860(c)(1).
12.
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 fourth quarter of 2017, in
violation of 40 CFR 141.854(b) and 40 CFR 141.860(c)(1).
13.
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 one subpart Y
monitoring violation and one Level 1 assessment under the provisions of 40 CFR
141.859 in a rolling 12-month period for a system on quarterly monitoring.
Respondent was required to begin monthly monitoring for total coliform in March
2018. IDEM
records indicate Respondent failed to monitor at least one total coliform
sample from the PWS during the months of April, May, June, July, August, September, October, and
November 2018, in violation of 40 CFR 141.854(f) and 40 CFR 141.860(c)(1).
14. 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:
a.
failed to notify the public
after the failure to collect at least one
ground water source sample from each ground water source in use at the time of the total coliform-positive
sample on June 28, 2017;
b.
failed to notify the public
after the failure to submit Level 1 Assessment form within 30 days after the system
learned that it had exceeded a trigger;
c.
failed to notify the public
after the failure to collect three
additional routine monitoring samples from the PWS in July 2017, the month
following the total coliform-positive sample; and
d.
failed to
notify persons served by the PWS of the failure to monitor at least one total
coliform sample from the PWS for the fourth quarter of 2017 and the months of April, May, July, August, September,
October, and November 2018, each in violation of 40 CFR 141.861(a)(4) and 327
IAC 8-2.1-7.
On March 9, 2019, Respondent completed the public notice and
Certification form for public notice and posted it where the public has ready
access for viewing. On March 13, 2019, Respondent sent to IDEM a signed
Certification form for public notice and representative copy of the public
notice issued.
15.
Pursuant to IC 13-18-20.5-2(4), for
public water systems, the annual operation fees for a transient non-community
water system utilizing groundwater is one hundred dollars ($100).
Pursuant to IC 13-18-20.5-4, in addition to the penalties
prescribed under:
(1) IC 13-30-4-1;
(2) IC 13-30-4-2; and
(3) IC 13-30-5-1;
if a person does not remit a public water system annual
operation fee or installment of the fee under IC 13-16-2 to the department not
later than sixty (60) days after the date the fee is assessed or not later than
thirty (30) days after the date the installment is due, the person shall be
assessed a delinquency charge equal to ten percent (10%) of the fee or ten
percent (10%) of the installment, whichever applies. A delinquency charge
assessed under this section is due and payable not later than sixty (60) days
after the date a fee is assessed or not later than thirty (30) days after the
date an installment of the fee is due under IC 13-16-2.
Respondent failed to pay the annual operation fee and
associated late fees for 2017 and 2018. The invoices stated that IDEM may
pursue enforcement action for non-payment of annual fees and any associated
late fees. IDEM, via electronic mail, informed Respondent that the below fees
were due or an enforcement action will be taken. IDEM did not receive a
response regarding payment.
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Description |
Invoice
Date |
Invoice
Amount |
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2017 Annual Operation Fee Invoice #000236156 |
January 11, 2017 |
$100.00 |
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2017 Late Fee Invoice #000249911 |
May 5, 2017 |
$10.00 |
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2018 Annual Operation Fee Invoice #000257697 |
January 12, 2018 |
$100.00 |
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2018 Late Fee Invoice #000269919 |
June 1, 2018 |
$10.00 |
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TOTAL
DUE |
$220.00 |
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On March 13, 2019, Respondent paid all annual operation fees
and associated late fees for 2017 and 2018.
16.
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 8 through 15
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 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.
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.
5.
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 |
6.
Respondent is assessed and agrees to
pay a civil penalty of Five Hundred Seventy-Eight Dollars ($578). 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.”
7.
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 |
If applicable, failure to provide public notice. |
$250 per week, or part thereof. |
8.
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.
9.
Civil and stipulated penalties are
payable by check to the “Environmental Management Special Fund.” Checks shall
include the Case Number 2019-25941-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 |
10.
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.
11.
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.
12.
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.
13.
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.
14.
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.
15.
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.
16.
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.
17.
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.
18.
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 |
Lincoln Lodge
Motel, Inc. |
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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 3, 2019 |
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Martha Clark Mettler |
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Assistant Commissioner |
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Office of Water Quality |