STATE OF INDIANA

COUNTY OF MARION

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BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v.

JIMMY O’S, INC.,

Respondent.

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Case No. 2020-27145-D

 

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.               Jimmy O’s, Inc. (Respondent) owns and/or operates a transient non-community public water system (PWS) with PWSID No. IN2910810, serving 40 persons. The PWS is located at 5658 N West Shafer Drive, Monticello, White 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:

 

Jackie Evans, Owner

James Oppolo, Registered Agent

Jimmy O’s, Inc.

Jimmy O’s, Inc.

5658 N West Shafer Drive

1249 Auburn Meadow Lane

Monticello, IN 47960

Schererville, IN 46312

 

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 141.854(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 one subpart Y monitoring violation and one Level 1 assessment under the provisions of 40 CFR 141.859 in a rolling 12-month period for a system on quarterly monitoring.  Respondent was required to begin monthly monitoring for total coliform in June 2018.  IDEM records indicate Respondent failed to monitor at least one total coliform sample from the PWS during the months of October 2019 and June 2020, in violation of 40 CFR 141.854(f) and 40 CFR 141.860(c)(1).

 

8.               Pursuant to 40 CFR 141.402(a)(2) and 327 IAC 8-2.3-4(a)(2), a ground water system must collect, within 24 hours of notification of the total coliform-positive sample, at least one ground water source sample from each ground water source in use at the time the total coliform-positive sample was collected.

 

IDEM records indicate Respondent failed to take at least one ground water source sample after the total coliform-positive sample on October 31, 2017 and November 26, 2018, in violation of 40 CFR 141.402(a)(2).

 

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 2019, in violation of 327 IAC 8-2-4.1(f).

 

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 month of October 2019 and June 2020, each in violation of 40 CFR 141.861(a)(4) and 327 IAC 8-2.1-7;

b.     failed to notify the public after the failure to collect at least one ground water source sample from each ground water source in use at the time of the total coliform-positive sample on October 31, 2017 and November 26, 2018, in violation of 40 CFR 141.861(a)(4), and 327 IAC 8-2.1-7;

c.  failed to notify persons served by the PWS of the failure to monitor nitrate from the PWS in 2019, in violation of 327 IAC 8-2.1-7;

 

11.           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 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.               Within 30 days of the Effective Date, Respondent shall collect at least one ground water source sample from each ground water source in use at the time of the total coliform-positive sample.

 

5.               Within 30 days of the Effective Date, Respondent shall, for the purposes of this Order, monitor nitrate at the entry point to the distribution system that is representative of each well after treatment.

 

It is the responsibility of Respondent to continue sampling nitrate annually, pursuant to 327 IAC 8-2-4.1(f).

 

6.               Within 10 days of becoming aware of a nitrate MCL exceedance, Respondent shall submit notification to IDEM of the MCL exceedance. Respondent shall complete all requirements to resolve the MCLs as instructed by IDEM’s notification(s).

 

7.               Within 30 days of the Effective Date, Respondent shall provide public notice, for the past monitoring violations listed in Paragraph 10 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.

 

8.               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.

 

9.               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 10.

 

10.           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

 

11.           Respondent is assessed and agrees to pay a civil penalty of Four Hundred Eighty-One Dollars ($481). Said penalty amount shall be paid in three (3) consecutive monthly payments.  The first payment in the amount of One Hundred Sixty-One Dollars ($161) shall be due and payable to the “Environmental Management Special Fund” within 30 days of the Effective Date.  The remaining amount of Three Hundred Twenty Dollars ($320) shall be due in two (2) consecutive monthly payments of One Hundred Sixty Dollars ($160), with the final day of each month being the “Due Date.”  The total amount of the civil penalty can be paid anytime prior to the final payment due date.

 

12.           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 collect ground water source sample.

$300 per sample missed.

5

Failure to monitor and report required nitrate sample.

$350 per sample missed.

6

Failure to comply with any part of this paragraph after a MCL exceedance.

$400 per week for violation of any part of this paragraph.

7

Failure to comply with any or all of the requirements of this paragraph.

$250 per week, or part thereof, past the 30-day deadline.

8

If applicable, failure to provide public notice.

$250 per week, or part thereof.

9

Failure to submit the “System Basic Information Summary” document in the manner specified.

$100 per week, or part thereof.

 

13.      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.

 

14.      Civil and stipulated penalties are payable by check to the “Environmental Management Special Fund.” Checks shall include the Case Number 2020-27145-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

 

15.      This Agreed Order shall apply to and be binding upon Respondent, her 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 her status or responsibilities under this Agreed Order.

 

16.      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.

 

17.      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.

 

18.      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.

 

19.      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 her obligation to comply with the requirements of her applicable permits or any applicable Federal or State law or regulation.

 

20.      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.

 

21.      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.

 

22.      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.

 

23.      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

Jimmy O’s, Inc.

 

By:__________________________

By:________________________

Samantha K. Groce, Chief

 

Water Enforcement Section

 

Surface Water, Operations &

Printed:_____________________

Enforcement Branch

 

Office of Water Quality

Title:_______________________

 

 

Date:________________________

Date:_______________________

 

 

COUNSEL FOR RESPONDENT:

 

 

 

By:________________________

 

 

 

Date:______________________

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS ___________ DAY OF ________________, 20___.

 

 

For The Commissioner:

 

 

Signed on October 22, 2020

 

Martha Clark Mettler

 

Assistant Commissioner

 

Office of Water Quality