STATE OF INDIANA )   BEFORE THE INDIANA DEPARTMENT
  )  SS: OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION )    
COMMISSIONER OF THE DEPARTMENT )  
OF ENVIRONMENTAL MANAGEMENT, )  
  )  
  Complainant, )  
  )  
    v. ) CASE NO. 2001-10680-W
  )  
AMERICUS RESTAURANT & BAR, INC., )  
  )  
  Respondent. )  

AGREED ORDER



The Complainant and the 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.
 
 

I. FINDINGS OF FACT

1. The Complainant is the Commissioner (hereinafter referred to as "Complainant") of the Indiana Department of Environmental Management, a department of the State of Indiana created by IC 13-13-1-1.

2. The Respondent is Americus Restaurant & Bar, Inc. ("Respondent"), which owns and operates the Americus Restaurant & Bar public water supply ("PWS") system located at 7460 State Road 25 North, Lafayette, Tippecanoe County, Indiana. This is a transient noncommunity PWS system identified as PWSID Number 2790811.

3. The Indiana Department of Environmental Management ("IDEM") has jurisdiction over the parties and subject matter of this action.

4. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation via Certified Mail to:
 
 
Mr. Richard E. Roberts, President and Registered Agent
Americus Restaurant & Bar, Inc.
7460 St Rd 25 N
Lafayette, Indiana 47905
5. On or before April 28, 2000, and on or before January 16, 2002, record reviews were conducted by a representative of IDEM's Office of Water Quality ("OWQ"). The following violations were in existence or observed at the time of these record reviews: A. Pursuant to 327 IAC 8-2-8(c), a noncommunity water supply system which serves at least twenty-five (25), but not more one thousand (1,000), persons must collect at least one (1) routine total coliform sample each calendar quarter. The Respondent failed to collect at least one (1) routine total coliform sample from Respondent's PWS system during the first, second, third, and fourth quarters of 1999, the first, second, third, and fourth quarters of 2000, and the first, second, third, and fourth quarters of 2001, in violation of 327 IAC 8-2-8(c).

B. Pursuant to 327 IAC 8-2-15(d), the owner or operator of a noncommunity water supply system that fails to perform monitoring required pursuant to 327 IAC 8-2 shall initially notify persons served by the system, by an appropriate method as outlined in this rule, within three (3) months after the violation occurs. The Respondent failed to notify persons served by Respondent's PWS system of the total coliform monitoring violations during the first, second, third, and fourth quarters of 1999, and the second, third, and fourth quarters of 2000, and the first, second, third, and fourth quarters of 2001, in violation of 327 IAC 8-2-15(d).

C. Pursuant to 327 IAC 8-2-4.1, all public water supply systems (PWS) shall monitor to determine compliance with the maximum contaminant level (MCL) for nitrate. Respondent failed to monitor its PWS system for nitrate during 1999, in violation of IAC 8-2-4.1.
 
 

 6. On April 28, 2000, IDEM issued a Warning of Noncompliance letter ("WONC") to Mr. Dick Roberts at Americus Restaurant & Bar, 7460 St Rd 25 N, Lafayette, Indiana 47905. The WONC addressed the nitrate monitoring violations during 1998 and 1999, and the total coliform monitoring violations during the first, second, third, and fourth quarters of 1997, the first, second, third, and fourth quarters of 1998, and the first, second, third, and fourth quarters of 1999. Furthermore, the WONC requested that the recipient provide a written response to IDEM within fourteen days of its receipt. IDEM received no written response to the WONC.

7. In recognition of the settlement reached, the Respondent 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 approved by the Complainant or her delegate, and has been received by the Respondent. This Agreed Order shall have no force or effect until the Effective Date.

2. The Respondent shall comply with all applicable provisions of the Indiana Administrative Code (IAC), including, but not limited to, 327 IAC 8-2-8(c), 327 IAC 8-2-15(d), 327 IAC 8-2-4.1, 327 IAC 8-2-13(a), and 327 IAC 8-2-13(c).

3. Within thirty (30) days after the Effective Date of this Agreed Order and each calendar quarter thereafter, or part thereof, that the Respondent's PWS system is in operation, the Respondent shall monitor for total coliform in Respondent's PWS system, pursuant to 327 IAC 8-2-8(c).

4. During the year 2002 and during each calendar year thereafter, or part thereof, that the Respondent's PWS system is in operation, the Respondent shall monitor for nitrate at the entry point to the Respondent's PWS system, pursuant to 327 IAC 8-2-4.1.

5. Within the shorter of either ten (10) days after the Respondent receives any total coliform or nitrate monitoring results, or ten (10) days after the end of the applicable total coliform or nitrate monitoring period, the Respondent shall submit said monitoring results for the Respondent's PWS system to IDEM, pursuant to 327 IAC 8-2-13(a). A copy of the monitoring results shall be sent to both IDEM's Office of Enforcement ("OE") and OWQ's Drinking Water Branch ("DWB").

6. Within thirty (30) days after the Effective Date of this Agreed Order, the Respondent shall provide public notification for the violations listed in Section I, Paragraph 5, by hand delivery or posting in a conspicuous location in the area served by the Respondent's PWS system, pursuant to 327 IAC 8-2-15(d).

7. In the event that the Respondent fails to complete any monitoring required by this Agreed Order, the Respondent shall, within three (3) months of the failure, provide public notification of said failure by hand delivery or posting in a conspicuous location in the area served by the Respondent's PWS system, pursuant to 327 IAC 8-2-15(d).

8. Within seven (7) days of providing any public notice required by this Agreed Order, the Respondent shall submit a copy of the public notice to IDEM, pursuant to 327 IAC 8-2-13(c). A copy of the public notice, along with an explanation of how the public notification was distributed, shall be sent to both IDEM's OE and OWQ's DWB.

9. All submittals required by this Agreed Order to be submitted to OE, unless notified otherwise in writing, shall be sent to:

Paul Cluxton, Case Manager

Office of Enforcement

Indiana Department of Environmental Management

100 North Senate Avenue

P.O. Box 6015

Indianapolis, IN 46206-6015

10. All submittals required by this Agreed Order to be submitted to OWQ's DWB, unless notified otherwise in writing, shall be sent to:

Drinking Water Branch

Indiana Department of Environmental Management

P.O. Box 7148

Indianapolis, IN 46207-7148

11. Respondent is assessed a Civil Penalty of One Thousand Three Hundred Fifty Dollars ($1,350). This penalty reflects a significant reduction based upon evidence submitted by the Respondent which adequately demonstrated an inability to pay the original penalty amount assessed based on IDEM's civil penalty policy. Said penalty amount shall be due and payable to the Environmental Management Special Fund within 30 days of the Effective Date of this Agreed Order.
 
 
 
 
 
 
 
  12. In the event the following terms and conditions of this section are violated, the Complainant may assess and the Respondent shall pay a stipulated penalty in the following amounts: Violation Penalty Failure to comply with Paragraph 3 $500 for the failure of the Respondent to monitor for total coliform within either the 30-day or any subsequent quarterly time frame.

Failure to comply with Paragraph 4 $500 for the failure of the Respondent to monitor for nitrate within any yearly time frame.

Failure to comply with Paragraph 5 $100 per each week, or part thereof, past the applicable 10-day deadline that the Respondent fails to submit a copy of the results of any monitoring required by this Agreed Order to IDEM.

Failure to comply with Paragraph 6 $250 per each week, or part thereof, past the 30-day deadline that the Respondent fails to provide public notification for the violations listed in Section I, Paragraph 5.

Failure to comply with Paragraph 7 $250 per each week, or part thereof, past the 3-month deadline that the Respondent fails to provide public notification for any violation of the monitoring requirements of this Agreed Order.

Failure to comply with Paragraph 8 $100 per each week, or part thereof, past the 7-day deadline that the Respondent fails to submit a copy of any public notification required by this Agreed Order to IDEM.
 
 

 13. Stipulated penalties shall be due and payable within thirty (30) days after the Respondent receives written notice that the Complainant has determined a stipulated penalty is due. Assessment and payment of stipulated penalties shall not preclude the Complainant from seeking any additional relief against the Respondent for violation of the Agreed Order. In lieu of any of the stipulated penalties given above, the Complainant may seek any other remedies or sanctions available by virtue of the Respondent's violation of this Agreed Order, or 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 of this action and shall be mailed to:

Cashier

Indiana Department of Environmental Management

100 N. Senate Avenue

P. O. Box 7060

Indianapolis, IN 46207-7060

15. In the event that the civil penalty required by Order paragraph 11 is not paid within thirty (30) days of the Effective Date of this Agreed Order, Respondent shall pay interest on the unpaid balance at the rate established by IC 24-4.6-1-101. The interest shall continue to accrue until the civil penalty is paid in full.

16. This Agreed Order shall apply to and be binding upon the Respondent, its successors, and assigns. The Respondent's signatories to this Agreed Order certify that they are fully authorized to execute this document and legally bind the parties they represent. No change in ownership, corporate, or partnership status of the Respondent shall in any way alter its status or responsibilities under this Agreed Order.

17. In the event that any terms of the 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 the Agreed Order did not contain the invalid terms.

18. The Respondent shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights are transferred. The 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 does not in any way relieve Respondent of its obligation to comply with the requirements of any applicable federal or state law or regulation.

20. The Complainant does not, by its approval of this Agreed Order, warrant or aver in any manner that the Respondent's compliance with any aspect of this Agreed Order will result in compliance with any applicable federal or state law or regulation.

21. This Agreed Order shall remain in effect for at least 2 years after the Effective Date of this Agreed Order and until the Respondent has complied with the terms and conditions of Paragraphs 3 through 15 of this section of the Agreed Order and IDEM has issued a close-out letter to the Respondent.

 TECHNICAL RECOMMENDATION: RESPONDENT: Department of Environmental Management Americus Restaurant & Bar, Inc.
By: ______________________________ By: ______________________________

Mark W. Stanifer

Section Chief, Water Section Printed: _____________________________

Office of Enforcement

Title: ______________________________ Date: _______________________________ Date: ______________________________
 
 
 
 
 
 

COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:

Department of Environmental Management

By: ______________________________ By: ______________________________

Hala K. Silvey

Office of Legal Counsel
 
 

Date: ______________________________ Date: ______________________________







APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS ________________ DAY OF ____________________________, 2002.
 
 

For The Commissioner:
 
 

__(Signed April 11, 2002)____

Felicia A. Robinson

Deputy Commissioner

for Legal Affairs