STATE OF INDIANA |
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BEFORE THE INDIANA DEPARTMENT |
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COMMISSIONER OF THE DEPARTMENT Complainant, v. Shaffer T & C, Inc., 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.
Shaffer
T & C, Inc.
(Respondent) owns and/or operates community
public water system (PWS) with PWSID No. IN5268012, serving 35 persons. The PWS
is located
at 11613 W State Road 28, Ridgeville, Randolph 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:
Clyde Shaffer, Jr., President &
Registered Agent |
Shaffer T & C, Inc. |
7963 N Delaware County Road |
Albany, IN 47320 |
6.
327 IAC 8-2-2 states that each PWS shall comply
with all provisions of this rule and 327 IAC 8-2.
7.
Pursuant to 327 IAC 8-4.1-16(a)(2)(C), to have
Phase II of a Wellhead Protection Program (WHPP) approved, materials must be
submitted within ten (10) years after IDEM approval of Phase I material for a
small Community Public Water Supply System (CPWSS).
IDEM records indicate that on September
20, 2005, IDEM formally reviewed and approved Respondent’s Phase I WHPP for its
CPWSS. The records further indicate that Respondent did not submit a Phase II
WHPP within the prescribed time frame, as indicated in the Phase I approval
letter. IDEM sent a Phase II WHPP Reminder Notification on September 11, 2013.
IDEM sent Phase II WHPP Past Due Notifications on April 14, 2016; June 22,
2018; and January 21, 2020. To date, IDEM has not received a Phase II WHPP from
Respondent, in violation of 327 IAC 8-4.1-16(a)(2)(C).
8.
Pursuant to 327 IAC 8-2-44(d), a water system
shall deliver a consumer notice of lead tap water monitoring results to persons
served by the water system at sites that are tested. A water system shall
provide the consumer notification as soon as practical but, not later than 30
days after the system learns of the lead tap water monitoring results.
IDEM records indicate that Respondent
failed to provide a consumer notification to persons served at the tap tested
for lead in 2018, in violation of 327 IAC 8-2-44(d).
As of November 4, 2020, Respondent has
submitted the Consumer Notice of Lead Results.
9.
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 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.
Within
60 days of the Effective Date, Respondent shall submit to IDEM the material
required by Indiana's Wellhead Protection Rule, 327 IAC 8-4.1-9, for the Phase
II WHPP. Respondent shall develop and submit the Phase II WHPP materials that
contain the following core elements:
a. Comprehensive
WHPP.
b. Proof
of Phase I WHPP Implementation.
c. Updated
schedule of implementation.
d. Updated
wellhead protection area (WHPA), considering new data if any.
e. Updated
potential sources of contamination inventory including a map.
f. Report
of any problems or concerns regarding WHPP.
g. Contingency
plan revisions (if needed).
h. Documentation
to confirm:
i. Sanitary
Setback Area meets requirements.
ii. Abandoned
wells are identified.
ii. Wellhead
is secured from unauthorized access.
iv. All
potential sources of contamination within the WHPA are managed.
vi. Public
education is ongoing.
vii. Any
new ground water contamination within the WHPA is reported.
3. 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 6.
4.
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 |
5.
Respondent is assessed and agrees to pay a
civil penalty of Two Hundred Twenty Dollars ($220). Said penalty amount shall
be due and payable to the “Environmental Management Special Fund” within 30
days of the Effective Date, the 30th day being a “Due Date.”
6.
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
develop and/or submit a complete Phase II WHPP to IDEM. |
$200 per
week, or part thereof. |
3 |
Failure to
submit the “System Basic Information Summary” document in the manner
specified. |
$100 per
week, or part thereof. |
7.
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.
8.
Civil and stipulated penalties are payable by
check to the “Environmental Management Special Fund.” Checks shall include the
Case Number 2020-27324-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 |
9.
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.
10.
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.
11.
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.
12.
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.
13.
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.
14.
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.
15.
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.
16.
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.
17.
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 |
Shaffer T
& C Inc. |
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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 17, 2020 |
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Martha
Clark Mettler |
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Assistant
Commissioner |
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Office
of Water Quality |