STATE OF INDIANA |
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BEFORE THE INDIANA DEPARTMENT |
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COMMISSIONER OF THE DEPARTMENT Complainant, v. IMH Realty Corp. dba Indiana Masonic Home, 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.
IMH
Realty Corp. dba Indiana Masonic Home (Respondent) owns and/or operates a
community public water system (PWS) with PWSID No. IN5241010, serving 579
persons. The PWS is located at 690 State Street, Franklin, Johnson County,
Indiana (the Site).
3.
A Community Water System (CWS) as defined by
327 Indiana Administrative Code (IAC) 8-2-1(12) is a PWS that serves at least
fifteen (15) service connections used by year-round residents or regularly
serves at least twenty-five (25) year-round residents.
4.
IDEM has jurisdiction over the parties and the
subject matter of this action pursuant to IC 13-30-3.
5.
Pursuant to IC 13-30-3 et seq., IDEM issued a
Notice of Violation via Certified Mail to:
Charles Spencer |
IMH Realty
Corporation |
690 S. State
Street |
Franklin, IN,
46131 |
6.
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.
Pursuant to 327 IAC
8-2.5-20, a PWS shall report TTHM and HAA5 monitoring result to IDEM within 10
days after the end of any quarter in which monitoring is required.
IDEM records
indicate that Respondent failed to monitor TTHM and HAA5 samples during 2018
and 2019 and failed to report monitoring results to IDEM, in violation of 327
IAC 8-2.5-14(a)(3), and 327 IAC 8-2.5-20.
8.
Pursuant to 327 IAC 8-2-37(c)(1), water systems
shall collect at least one (1) sample during each monitoring period specified
in subsection (d) from the number of sites listed in the second column of the
table in this subsection (standard monitoring).
Respondent is required to collect 10
lead and copper samples during June through September annually. IDEM records
indicate Respondent failed to monitor and report for lead and copper during the
months of June through September 2018 and 2019, in violation of 327 IAC
8-2-37(c)(1).
9.
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 TTHM and HAA5 samples during
2018 and 2019 and failed to report monitoring results to IDEM, in violation of 327
IAC 8-2.1-7; and
(b)
failed to notify persons served by the PWS of
the failure to perform Lead and Copper monitoring during the months of June
through September 2018 and 2019, each in violation of 327 IAC 8-2.1-7.
10.
Orders of the Commissioner are subject to
administrative review by the Office of Environmental Adjudication under IC
4-21.5; however, in recognition of the settlement reached, Respondent
acknowledges 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 9 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 monitor for TTHM and HAA5 at
the locations and dates specified in Respondent’s CMP, these will count as the
make-up sample(s) for the missed required TTHM and HAA5 samples for 2020.
It
is the responsibility of Respondent to continue sampling TTHM and HAA5, as
specified in the CMP, after completion of the sampling required by this
paragraph.
3.
Within
10 days of becoming aware of a TTHM and HAA5 MCL exceedance, Respondent shall
submit notification to IDEM of the MCL exceedance. Respondent shall complete
all requirements to resolve the MCL exceedances as instructed by IDEM’s
notification(s).
4.
Respondent shall collect lead and copper
samples during the next monitoring period, January through June 2021 required
pursuant to 327 IAC 8-2-37.
5.
Within 30 days of the Effective Date,
Respondent shall provide public notice, for the past TTHM, HAA5, lead, and
copper monitoring and/or reporting 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 TTHM, HAA5, lead, and copper monitoring
violations accompany this Agreed Order.
6.
Immediately upon the Effective Date, for future
monitoring and/or reporting violations, Respondent shall provide public notice
to the State within 10 days and notify the public pursuant to 327 IAC
8-2.1-7(d)(4)
7.
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 8.
8.
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 |
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
monitor TTHM and HAA5 at the locations and dates specified in the CMP. |
$350 per
missed sample. |
3 |
Failure to
comply with any part of this paragraph after a MCL exceedance |
$400 per
week for violation of any part of this paragraph. |
4 |
Failure to
collect lead and copper samples. |
$350 per
sample missed. |
5 |
Failure to
comply with any or all of the requirements of this
paragraph. |
$300 per
week, or part thereof, past the 30-day deadline. |
6 |
If
applicable, failure to provide public notice. |
$300 per
week, or part thereof. |
7 |
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 2020- 27070-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: |
RESPONDENT: |
Department of Environmental Management |
IMH Realty Corp. dba Indiana Masonic
Home |
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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 November
19, 2020 |
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Martha Clark Mettler |
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Assistant Commissioner |
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Office of Water Quality |