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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. Dessy
Corp, 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.
Dessy Corp (Respondent) owns and/or
operates Phyl’s Corner, a transient non-community public water
system (PWS) with PWSID No. IN2200192, serving 25 persons. The PWS is located at 57968 CR 7, Elkhart, Elkhart 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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Jason Grounds, President and
Registered Agent |
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Dessy Corp |
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57968 CR 7 |
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Elkhart, IN 46517 |
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.
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 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.
9. Pursuant to 40
CFR 141.854(b), a non-community PWS using ground water only 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 second and fourth quarters
2018, in violation of 40 CFR 141.854(b) and 40 CFR 141.860(c)(1).
10. 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 in February 2019.
IDEM records indicate Respondent failed to monitor at least one total
coliform sample from the PWS during the months of February, March, May, June, and July 2019,
in violation of 40 CFR 141.854(f) and 40 CFR 141.860(c)(1).
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 PWS of the failure to monitor at least one total coliform
sample from the PWS, during the second and fourth 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 PWS of the failure to monitor at least one total coliform
sample from the PWS for the months of February, March, May, June, and July of 2019, each in violation of 40 CFR 141.861(a)(4)
and 327 IAC 8-2.1-7;
12. 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 January 7, 2019,
IDEM staff observed and documented the system had not provided an air gap on
the softener discharge line, in violation of 327 IAC 8-10-5.
During an inspection conducted on December 2, 2019, IDEM
staff observed and documented the system had provided an air gap on the
softener discharge line.
13. 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.
B. Is
located:
i. at a point prior
to any treatment or storage for each ground water source; and
ii. in such a
manner that it:
AA. prevents
contamination of the tap; and
BB. facilities
sampling when necessary.
During the sanitary survey conducted on January 7, 2019,
IDEM staff observed and documented a smooth bore tap was not installed on the
incoming line prior to the bladder tank, in violation of 327 IAC 8-2.3-2(b)(6).
During an inspection conducted on December 2, 2019, IDEM
staff observed and documented a smooth bore tap was properly installed on the
incoming line prior to the bladder tank.
14. 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 January 7, 2019, a sanitary survey was conducted by IDEM
at the Site in which significant deficiencies were found. An Inspection Summary
Letter dated January 8, 2019, was sent to Respondent requiring a written
response to IDEM within 30 days. An Inspection Summary Final Notice of
Noncompliance Letter dated March 29, 2019, was sent to Respondent requiring a
written response to IDEM within 15 days. An Inspection Summary-Ground Water
Treatment Technique Violation Letter dated July 8, 2019, 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).
15.
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 14
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.
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.
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 11.
7.
All submittals required by this
Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall
be sent to:
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Grant Chaddock,
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 |
8.
Respondent is assessed and agrees to
pay a civil penalty of Five Hundred Eighty-Five Dollars ($585). Said penalty
amount shall be paid in four (4) consecutive monthly payments. The first three
payments are in the amount of One Hundred and Fifty ($150) and the final
payment is in the amount of One Hundred and Thirty-Five ($135) dollars. The
first payment shall be made within 30 days of the Effective Date, and the final
day of each month shall be the “Due Date” for all subsequent payments. The
checks shall be made payable to the “Environmental Management Special Fund.”
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.
Civil and stipulated penalties are
payable by check to the “Environmental Management Special Fund.” Checks shall
include the Case Number 2019-26322-D, of this action and shall be mailed to:
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Indiana Department of
Environmental Management |
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Accounts Receivable |
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IGCN, Room 1340 |
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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 |
Dessy Corp |
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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 February 17, 2020 |
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Martha Clark Mettler |
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Assistant Commissioner |
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Office of Water Quality |