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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. bryant leasing 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.
Bryant Leasing LLC (Respondent) owns and/or operates a transient
non-community public water system (PWS) with PWSID No. IN2490550, serving 35
persons at Generations Grill. The PWS is located at 7628 Southeastern Avenue, Indianapolis,
Marion
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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Charley
Bryant, President and Registered Agent |
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Bryant
Leasing LLC |
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7628
Southeastern Avenue |
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Indianapolis,
Indiana 46239 |
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 141.854(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 fourth quarter of 2017 and the first and second quarters of 2018, in
violation of 40 CFR 141.854(b) and 40
CFR 141.860(c)(1).
8.
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 October
2018. IDEM records indicate Respondent failed
to monitor at least one total coliform sample from the PWS during the months of
October, November, and
December 2018,
and March 2019, in violation of 40
CFR 141.854(f) and 40 CFR 141.860(c)(1).
9.
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, 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:
a. 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
fourth
quarter of 2017 and the first and second quarters of 2018, each in violation of 40 CFR 141.861(a)(4) and
327 IAC 8-2.1-7; and
b. 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(f) and 40 CFR 141.860(c)(1), for the months of October, November, and December 2018, and March
2019, each in violation of 40 CFR
141.861(a)(4) and 327 IAC 8-2.1-7.
10. Pursuant to IC 13-18-20.5-2(4), for
public water systems, the annual operation fees for a transient noncommunity
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 2015 and
2016. 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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2015
Annual Operation Fee Invoice #000201798 |
January
15, 2015 |
$100.00 |
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2015
Late Fee Invoice # 00211876 |
May
27, 2015 |
$10.00 |
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2016
Annual Operation Fee Invoice #000221424 |
January
8, 2016 |
$100.00 |
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2016
Late Fee Invoice #000230160 |
May
19, 2016 |
$10.00 |
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TOTAL DUE |
$220.00 |
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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.
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.
Within 30 days of the Effective Date,
Respondent shall provide public notice, for the past total coliform monitoring
violations listed in Paragraph 9 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.
5.
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.
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.
7.
Within
30 days of the Effective Date, Respondent shall submit payment for the annual
operation fees and associated late fees outlined in the Finding of Facts,
Paragraph 10 in the amount of Two Hundred Twenty Dollars ($220). Said fee
amount shall be due and payable within 30 days of the Effective Date, the 30th
day being a “Due Date.”
Checks for the annual operation fees and associated late
fees shall include the Case Number 2019-26069-D and Customer Number
CST100036777, and shall be mailed to:
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Indiana Department of Environmental Management |
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P.O. Box 3295 |
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Indianapolis,
Indiana 46206-3595 |
Online
payments for the annual operation fees and associated late fees only may be
made as follows:
2. Under “Online Services” [scroll towards
the bottom of the page]
3. Select “Online Payment Options”
4. Select payment by “eCheck” or “Credit
Card”
5. Under “Transaction Item”
6. Select “Invoice Payments” and follow the
prompts
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
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
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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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.
Penalties are payable by check to the
“Environmental Management Special Fund.” Checks shall include the Case Number 2019-26069-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 |
Bryant
Leasing 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
June 17, 2019 |
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Martha
Clark Mettler |
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Assistant
Commissioner |
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Office
of Water Quality |