STATE
OF INDIANA |
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BEFORE
THE INDIANA DEPARTMENT |
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COMMISSIONER
OF THE DEPARTMENT Complainant, v. Badell Dental Clinic PC, 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.
Badell Dental Clinic PC (Respondent) owns and/or operates a transient non-community public water
system (PWS) with PWSID No. IN2750037, serving 65 persons. The PWS is located at 1800 South Highway 35, Knox, Starke 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:
Gregory Wittig, President |
Badell Dental Clinic PC |
PO Box 152 |
Knox, IN 46534 |
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 January 2019. IDEM records indicate Respondent failed to monitor at least
one total coliform sample from the PWS during the months of July, August, September, and October
2019, and January, March, April and May 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 groundwater 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, 2018, in violation of 40 CFR 141.402(a)(2).
9.
Pursuant
to 40 CFR 141.858(a)(1), if a sample taken under 40 CFR 141.854 through 141.857
is total coliform-positive, the system must collect a set of repeat samples
within 24 hours of being notified of the positive result. The system must
collect no fewer than three repeat samples for each total coliform-positive
sample found.
Pursuant to 40 CFR 141. 859(b)(3), PWS must conduct a Level
1 assessment consistent with State requirements if the system exceeds one of
the treatment technique triggers in 40 CFR
141.859(a)(1).
IDEM records indicate Respondent failed to take every
required repeat sample, a Level 1 treatment technique trigger, after the total
coliform-positive sample on October 31, 2018, in violation of 40 CFR
141.858(a)(1). Respondent triggered a Level 1 assesment
pursuant to 40 CFR 141.859(b)(3).
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 July, August, September
and October 2019, and January, March, April and May 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 three
additional routine monitoring samples from the PWS in November 2018 the month following the total coliform-positive sample, in
violation of 40 CFR 141.854(j) and 40 CFR 141.860(c)(1);
c.
failed to notify the public after
failure to collect the required source sample from the PWS in October 2018,
following the total coliform-positive sample, 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, 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 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.
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.
4.
Within
30 days, of the Effective Date, Respondent shall complete a Level 1 assessment
consistent with IDEM requirements, and submit the completed assessment form to
IDEM, which identifies any sanitary defects detected, corrective actions
completed, and a proposed timetable for any corrective actions not already
completed. In the event IDEM determines that the assessment in not sufficient,
Respondent shall submit a revised assessment form to IDEM in accordance with
IDEM’s notification. Respondent shall complete all corrective actions in
accordance with the proposed timetable.
5.
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.
6.
Within 30 days of the Effective
Date, Respondent shall provide public notice, for the past total coliform
monitoring violations and the missing groundwater source sample listed in
Paragraph 7 and Paragraph 8 respectively, 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.
7.
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.
8.
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 9.
9.
All submittals required by this
Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall
be sent to:
Grant Chaddock, Enforcement Case
Manager |
Office of Water Quality – IGCN
1255 |
Indiana Department of
Environmental Management |
100 North Senate Avenue |
Indianapolis, IN 46204-2251 |
10.
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 collect ground water
source sample. |
$300 per sample missed. |
4 |
Failure to complete the Level 1 assessment
and/or submit the form to IDEM within the required time
period. |
$250 per week late, or part
thereof. |
4 |
Failure to complete corrective
actions for sanitary defects in accordance with the proposed timetable. |
$300 per corrective action. |
5 |
Failure to comply with any or all of the requirements of this paragraph. |
$300 per week for violation of any
part of this requirement. |
6 |
Failure to comply with any or all of the requirements of this paragraph. |
$250 per week, or part thereof,
past the 30-day deadline. |
7 |
If applicable, failure to provide public notice. |
$250 per week, or part thereof. |
8 |
Failure to submit the “System
Basic Information Summary” document in the manner specified. |
$100 per week, or part thereof. |
11. 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.
12. Civil and stipulated penalties are payable by check to the “Environmental
Management Special Fund.” Checks shall include the Case Number 2020-27150-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 |
13.
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.
14.
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.
15.
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.
16.
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.
17.
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.
18.
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.
19.
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.
20.
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.
21.
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 |
Badell Dental Clinic PC |
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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 24, 2020 |
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Martha Clark Mettler |
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Assistant Commissioner |
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Office of Water Quality |