STATE OF INDIANA |
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BEFORE THE INDIANA DEPARTMENT |
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COMMISSIONER OF THE DEPARTMENT Complainant, v. WEBSTER
LODGE 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.
Webster
Lodge LLC (Respondent) owns and/or operates transient non-community public water
system (PWS) with PWSID No. IN2430060, serving 40 persons. The PWS is located at 811
South Main Street, North Webster, Kosciusko 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:
Mark
Phillabaum, Principal Member |
Bruce A
Korenstra, Registered Agent |
Webster Lodge
LLC |
Webster Lodge
LLC |
501 West
Railroad Ave |
501 West
Railroad Ave |
Syracuse, IN
46567 |
Syracuse, IN
46567 |
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(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 October 2018. IDEM records indicate Respondent failed to
monitor at least one total coliform sample from the PWS during the months of
October and December 2018 and January, April, May, June, July, August,
September, October, November, and December 2019, in violation of 40 CFR
141.854(f) and 40 CFR 141.860(c)(1).
8.
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 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 October
and December 2018 and January, April, May, June, July, August, September,
October, November, and December 2019, each
in violation of 40 CFR 141.861(a)(4) and 327 IAC 8-2.1-7.
9.
Orders of the Commissioner are
subject to administrative review by the Offfice of Environmental Adjudication
under IC 4-21.5; however, in recognition of the settlement reached,
Respondentacknowledges notice of this right and 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 8
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) (use (MCL) if used prior to this
paragraph) exceedance.
4.
Within 30 days of the Effective
Date, Respondent shall provide public notice, for the past total coliform
monitoring violations listed in Paragraph 8 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.
All submittals required by this
Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall
be sent to:
Jessica Irvine,
Enforcement Case Manager |
Office of Water Quality – IGCN
1255 |
Indiana Department of
Environmental Management |
100 North Senate Avenue |
Indianapolis, IN 46204-2251 |
8.
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 |
Failure to comply with any or all
of the requirements of this paragraph. |
$250 per week, or part thereof,
past the 30-day deadline. |
5 |
If applicable, failure to provide public notice. |
$250 per week, or part thereof. |
6 |
Failure to submit the “System
Basic Information Summary” document in the manner specified. |
$100 per week, or part thereof. |
9.
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.
10.
Penalties are payable by check to
the “Environmental Management Special Fund.” Checks shall include the Case
Number 2019-26720-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 |
11.
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.
12.
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.
13.
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.
14.
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.
15.
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.
16.
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.
17.
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.
18.
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.
19.
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 |
Webster
Lodge LLC |
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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 April 13, 2020 |
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Martha Clark Mettler |
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Assistant Commissioner |
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Office of Water Quality |