STATE OF INDIANA |
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BEFORE THE INDIANA DEPARTMENT |
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COMMISSIONER OF THE DEPARTMENT Complainant, v. White Horse saloon, 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.
White Horse Saloon, Inc. (Respondent) owns
and/or operates a transient
non-community public water system (PWS) with PWSID No. IN2460879, serving 38
persons. The PWS is located at 505
Water Street, LaPorte, LaPorte 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:
Mary Blazek,
Registered Agent |
White Horse
Saloon, Inc. |
1701 5th
St |
LaPorte, Indiana 46350 |
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.
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 and IDEM has not received a site sampling
plan from Respondent to date, in violation of 40 CFR 141.853(a).
IDEM received a Site Sampling Plan on
September 20, 2019.
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
was required to begin monthly monitoring for total coliform in September 2017. IDEM records
indicate Respondent failed to monitor at least one total coliform sample from
the PWS during the months of January,
March, May, June, July, August, October, November 2018, January, February, and
May 2019,
each in violation of 40 CFR
141.854(f) and 40
CFR 141.860(c)(1).
9.
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 during the year
of 2018, in violation of 327 IAC 8-2-4.1(f).
Respondent
has completed the 2019 nitrate monitoring requirements.
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, 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 PWS of the failure to monitor at least one total coliform sample
from the PWS for the months of January,
March, May, June, July, August, October, November 2018, January, February, and
May 2019,
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 nitrate from the PWS in 2018, in
violation of 327 IAC 8-2.1-7.
IDEM
received a completed public notice on September 20, 2019.
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, 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 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:
Delaney
Isaacs, Enforcement Case Manager |
Office of
Water Quality – IGCN 1255 |
Indiana
Department of Environmental Management |
100 North Senate Avenue |
Indianapolis,
IN 46204-2251 |
6.
Respondent is assessed and agrees to pay a
civil penalty of Two Hundred Sixty Five Dollars ($265). 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:
Paragraph: |
Violation: |
Stipulated
Penalty: |
2 |
Failure to
monitor and report required samples. |
$250 per
violation. |
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. |
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 2019-26128-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 |
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.
TECHNICAL
RECOMMENDATION: |
RESPONDENT: |
Department of Environmental Management |
White Horse Saloon, Inc. |
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By:__________________________ |
By:________________________ |
Samantha K. Groce, Chief |
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Water Enforcement Section |
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Surface
Water, Operations & |
Printed:_____________________ |
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 September 25, 2019 |
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Martha Clark Mettler |
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Assistant Commissioner |
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Office of Water Quality |