STATE OF INDIANA

COUNTY OF MARION

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BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v.

all american rv resorts iii llc,

Respondent.

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Case No. 2019-26068-D

 

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.             All American RV Resorts III, LLC (Respondent) owns and/or operates a transient non-community public water system (PWS) with PWSID No. IN2440065, serving 100 persons at Gordons Campground. The PWS is located at 9500 East 600 South, Wolcottville, Lagrange 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:

 

Brian Schaper, Member and Registered Agent

All American RV Resorts III, LLC d/b/a

Gordon’s Campground

2042 Broadway

Fort Wayne, IN  46802

 

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.             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 Indiana Code (IC) 13-18-16-6, all PWSs shall be continuously operated and maintained so that water is:

1)    safe in quality;

2)    clean and adequate in quantity; and

3)    chemically satisfactory for ordinary domestic consumption.

 

The person responsible for the operation of a PWS shall take all measures that are necessary to carry out the requirements so as to protect the quality and quality of the raw water supply from actual or threatened contamination.

The failure to carry out a duty set forth in subsection (a) or (b) constitutes a violations subject to the penalties imposed under this chapter.

 

During the sanitary survey conducted on June 16, 2016, IDEM staff observed and documented lack of operation and maintenance at the Site. The following were observed:

A.    The covers for the control boxes on all four softeners were missing;

B.    the inline filters in the office and in the upper bath house were leaking; and

C.   a dangerous cross connection when the hose is connected to the pool fill pipe each in violation of IC 13-18-16-6.

9.             Pursuant to 327 IAC 8-1-2(b); all direct additives in public water systems shall be certified for conformance to American National Standards Institute (ANSI)/National Sanitation Foundation (NSF) International Standard 60, NSF Listings, Drinking Water Treatment Chemicals- Health Effects.

 

During the sanitary survey conducted on June 16, 2016, IDEM staff observed and documented that the salt that was being used in the softeners was not

NSF-approved salt, in violation of IC 13-18-16-6 and 327 IAC 8-1-2(b).

 

10.         Pursuant to 327 IAC 8-10-5, customers shall construct an air gap or install a reduced pressure principle backflow preventer or a double check valve assembly in accordance with section 7 of this rule on the customer service line.

 

During the sanitary survey conducted on June 16, 2016, IDEM staff observed and documented the brine waste lines for the softeners located in the office building, the upper bath house, and the lower bath house were not provided with an air gap, in violation of IC 13-18-16-6 and 327 IAC 8-10-5.

 

11.         327 IAC 8-2.3-2(b)(6), a ground water PWS subject to this rule shall have a smooth-nosed sampling tap that meets the following:

A.    Has no interior or exterior threads available for sample collection; and

B.    Is located:

                           i.     at a point prior to any treatment or storage for each ground water source; and

                          ii.     in such a manger that it:

AA.         prevents contamination of the tap; and

BB.         facilities sampling when necessary.

 

Pursuant to 10 State Standards 3.2.7.3, the discharge piping shall:

1.    be equipped with a smooth nosed sampling tap located at a point where positive pressure is maintained, but before any treatment chemicals are applied; and

2.    the sampling tap shall be at least 18-inches above the floor to facilitate sample collection.

 

During the sanitary survey conducted on June 16, 2016, IDEM staff observed and documented that there was not an adequate raw water sample tap for each source, in violation of IC 13-18-16-6, 327 IAC 8-2.3-2(b)(6) and 10 State Standards 3.2.7.3.

 

12.         Pursuant to 327 IAC 8-2-8.2(h)(1), 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:

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 June 16, 2016, a sanitary survey was conducted by IDEM at the Site in which significant deficiencies were found. An Inspection Summary Letter dated August 22, 2016, was sent to Respondent requiring a written response to IDEM within 30 days. An Inspection Summary Final Notice of Noncompliance Letter dated May 22, 2018, was sent to Respondent requiring a written response to IDEM within 15 days. An Inspection Summary-Ground Water Treatment Technique Violation Letter dated December 28, 2018, was sent to Respondent requiring a written response to IDEM within 15 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)(1).

 

13.         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 9 through 12 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 respond in writing to all deficiencies noted in the Sanitary Survey conducted on June 16, 2016. The response must indicate the following:

A.            how Respondent will address deficiencies found during the sanitary survey; and

B.            on what schedule, including milestone dates, Respondent will address deficiencies found during the sanitary survey.

 

3.             The written response required by Order Paragraph 2 is subject to IDEM approval. In the event IDEM determines that the written response submitted by Respondent is deficient or otherwise unacceptable, Respondent shall revise and resubmit the written response to IDEM in accordance with IDEM’s notice. After three submissions of such written response by Respondent, IDEM may seek civil enforcement of this Order.

 

4.             Respondent, upon receipt of written notification from IDEM, shall immediately implement the approved written response and adhere to the milestone dates therein. The approved written response shall be incorporated into the Agreed Order and shall be deemed an enforceable part thereof.

 

5.             Within 10 days of each required milestone included in the written response, Respondent shall submit to IDEM a written progress report or notification of completion for each milestone.

 

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 7 below.

 

7.             All submittals required by this Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall be sent to:

 

Aletha Lenahan, Enforcement Case Manager

Office of Water Quality – IGCN 1255

Indiana Department of Environmental Management

100 N. Senate Avenue

Indianapolis, IN  46204-2251

 

8.             Respondent is assessed and agrees to pay a civil penalty of Four Hundred Twenty-Five Dollars ($425). 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.”

 

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:

 

Paragraph:

Violation:

Stipulated Penalty:

2

Failure to submit a written response within the required time period.

$250 per week, or part thereof

3

Failure to modify the written response, if required, within the given time period.

$300 per week late, or part thereof.

4

Failure to meet and/or implement any milestone date set forth in the approved written response.

$350 per week late, or part thereof.

5

Failure to submit to IDEM a written progress report or notification of completion for each milestone, within the given time period.

$150 per week late, or part thereof.

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

2019-26068-D, of this action and shall be mailed to:

 

Indiana Department of Environmental Management

Accounts Receivable

IGCN, Room 1340

100 North Senate Avenue

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.

 

TECHNICAL RECOMMENDATION:

Department of Environmental Management

RESPONDENT:

All American RV Resorts III, LLC d/b/a

 

Gordon’s Campground

By:_____________________________

By:_______________________________

Samantha K. Groce, Chief

Water Enforcement Section

Printed:___________________________

Surface Water, Operations &

Enforcement Branch

Title:______________________________

Office of Water Quality

 

 

Date:____________________________

Date:_____________________________

 

 

COUNSEL FOR RESPONDENT:

By:_______________________________

Date:_____________________________

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS DAY _____ OF _________________, 2019.

For the Commissioner:

 

Signed on October 23, 2019

Martha Clark Mettler

Assistant Commissioner

Office of Water Quality