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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. Morris Properties, llc, Respondent. |
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2019-26021-D,
and 2019-26022-D |
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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. Respondent
owns three (3) year-round, transient, non-community public water systems (PWSs)
at Mini Mountain Campground, located at 32351 State Road 2, New Carlisle, St.
Joseph
County, Indiana, Parcel
No.: 012-1011-0142 (the Site). The wells at the Site supply the three (3) PWSs
as follows:
Mini
Mountain North (MM-N), 2019-26019-D, PWSID No. IN2710638, serving 40 persons;
Mini
Mountain South (MM-S), 2019-26021-D, PWSID No. IN2710636, serving 30 persons;
and
Mini
Mountain East (MM-E), 2019-26022-D, PWSID No. IN2710635, serving 100 persons.
The
Mini Mountain Campground at the Site is operated by Mini Mountain, LLC.
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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Fred
Morris, Member |
Fred
Morris, Registered Agent |
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Morris
Properties, LLC |
Morris
Properties, LLC |
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3213
Stevenson Street |
32351
State Road 2 |
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Plant
City, FL 33566 |
New
Carlisle, IN 46552 |
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Griffith
Law Group, LLC |
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Registered
Agent for: |
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Mini
Mountain, LLC |
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777
Beachway Drive, Suite 200 |
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Indianapolis,
IN 46224 |
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.
Pursuant
to the Revised Total Coliform Rule at 327 IAC 8-2.4-1, 40 Code of Federal
Regulations (CFR) 141, Subpart Y is incorporated by reference.
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 for the MM-N and MM-S 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 MM-N during
the fourth quarter of 2017 and the first, second, and third quarters 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 at the
MM-N, which required monthly total coliform monitoring to begin in October
2018. IDEM
records indicate Respondent failed to monitor at least one total coliform
sample from said PWS during the months of October,
November, and December 2018, and January, February, March, and April 2019, in violation
of 40 CFR 141.854(f) and 40 CFR 141.860(c)(1).
Respondent failed to monitor at least one
total coliform sample from the MM-S and MM-E, during the months of March, May, June, September, October,
November, and December 2018 and January, February, and March 2019, in violation
of 40 CFR 141.860(c)(1).
10. Pursuant to 327 IAC 8-2-4.1(f), all PWSs shall monitor nitrate to
determine compliance with the maximum contaminant level (MCL) for nitrate.
IDEM records indicate that Respondent
failed to monitor for nitrate at the MM-N, MM-S, and MM-E, during 2018, in
violation of 327 IAC 8-2-4.1(f).
11. 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 persons
served by the MM-N of the failure to monitor at least one total coliform sample
from said PWS during the fourth quarter of 2017, and first, second, and third
quarters of 2018, each in violation of 40 CFR 141.861(a)(4) and 327 IAC 8-2.1-7;
B.
Failed to
notify persons served by the MM-N of the failure to monitor at least one total
coliform sample from said PWS for the months of October, November, and December
2018 and January, February, and March 2019, each in violation of 40 CFR 141.861(a)(4) and 327 IAC 8-2.1-7; and
C.
Failed to notify persons
served by the MM-S and MM-E of the failure to monitor at least one total
coliform sample from each PWS for the months of March, May, June, September,
October, November, December of 2018 and January, February, and March 2019, each in violation of 40 CFR 141.861(a)(4) and 327
IAC 8-2.1-7; and
D.
Failed to notify persons
served by the MM-N, MM-S, and MM-E of the failure to monitor nitrate from each
PWS in 2018,
in violation of 327 IAC 8-2.1-7.
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.
Pertaining to MM-N and MM-S, 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.
Pertaining to MM-N, MM-S, and MM-E, 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 at all three (3) PWSs, 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. Pertaining to MM-N, MM-S, and MM-E, within 30 days of the Effective
Date, Respondent shall, for the purposes of this Order, monitor nitrate at the
entry point to the distribution system that is representative of each well
after treatment.
It is the responsibility of Respondent
to continue sampling nitrate annually, at all three (3) PWSs, pursuant to 327 IAC
8-2-4.1(f).
6. Within 10 days of becoming aware of a nitrate MCL exceedance,
Respondent shall submit notification to IDEM of the MCL exceedance. Respondent
shall complete all requirements to resolve the MCLs, as instructed by IDEM’s
notification(s).
7. Pertaining to MM-N, MM-S, MM-E, within 30
days of the Effective Date, Respondent shall provide public notice, for the
past total coliform monitoring violations listed in Paragraph 11 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.
8.
Pertaining to MM-N, MM-S, MM-E, 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.
9.
Within
30 days of the Effective Date, Respondent shall update the enclosed “System
Basic Information Summary” document for each PWS 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.
10.
All
submittals required by this Agreed Order, unless Respondent is notified
otherwise in writing by IDEM, shall be sent to:
11.
Respondent
is assessed and agrees to pay a civil penalty of One Thousand Four Hundred
Eighty-Five Dollars ($1,485). Said penalty amount is being assessed for MM-N,
MM-S, and MM-E and 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.”
12.
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
monitor and report required sample. |
$350 per
sample missed. |
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6 |
Failure to
comply with any part of this paragraph after a MCL exceedance. |
$400 per
week for violation of any part of this paragraph. |
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7 |
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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8 |
If applicable,
failure to provide public notice. |
$250 per
week, or part thereof. |
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9 |
Failure to
submit the “System Basic Information Summary” document in the manner
specified. |
$100 per
week, or part thereof. |
13. 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.
14. Civil and
stipulated penalties are payable by check to the “Environmental Management
Special Fund.” Checks shall include the Case Number:
2019-26019-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 |
15.
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.
16.
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.
17.
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.
18.
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.
19.
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.
20.
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.
21.
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.
22.
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.
23.
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 |
Morris
Properties, 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
July 8, 2019 |
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Martha
Clark Mettler |
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Assistant
Commissioner |
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Office
of Water Quality |