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. 2001-10623-W

)

BENNETT’S GREENHOUSES, INC., )

)

Respondent. )

 

 

NOTICE AND ORDER OF THE

COMMISSIONER OF THE

DEPARTMENT OF ENVIRONMENTAL MANAGEMENT

 

To:

VIA CERTIFIED MAIL No. ________________________

Ms. Ellen Kizer, President

Bennett’s Greenhouses, Inc.

3651 McCarty Lane

Lafayette, IN 47905

To:

VIA CERTIFIED MAIL No.

________________________

Mr. Richard W. Bennett, Vice President

Registered Agent

Bennett’s Greenhouses, Inc.

3651 McCarty Lane

Lafayette, IN 47905

 

 

 

The Respondent is Bennett’s Greenhouses, Inc. ("Respondent"), which has owned and operated a nontransient noncommunity public water system ("PWS"), PWS ID # 2790936, serving 65 persons at Bennett’s Greenhouses, Inc., located at 3651 McCarty Lane, in Lafayette, Tippecanoe County, Indiana ("Site").

This Notice and Order of the Commissioner of the Department of Environmental Management ("Order") is issued against the Respondent for violation of the Indiana Environmental Management Act. This Order is issued pursuant to IC 13-30-3-4, IC 13-30-3-10, and IC 13-30-3-11, and is based on violations found during an investigation conducted by the Office of Water Quality. During that investigation it was determined that the Respondent was in violation of IC 13-18-16-6(a), IC 13-18-16-6(b), IC 13-18-16-7, 327 IAC 8-2-4(d) and (e), 327 IAC 8-2-5.1(4), 327 IAC 8-2-5.5, 327 IAC 8-2-13(a), 327 IAC 8-2-15(d)(3)(B), and 327 IAC 8-2-37, as specified below.

On November 20, 2001, certain portions of the rules promulgated under 327 Indiana Administrative Code ("IAC") were repealed and repromulgated with modified codification, as applicable to the Public Water Supply regulatory program. All 327 IAC violations cited in this case occurred while the former rules were in effect, therefore the rule citations included in this Order reflect the rules that were in effect at that time.

 

FINDINGS OF VIOLATION

    1. Pursuant to IC 13-18-16-6(a), all public water supplies shall be continuously operated and maintained so that water is:

      1. safe in quality;

      2. clean and adequate in quantity; and

      3. chemically satisfactory for ordinary domestic consumption.

The Respondent failed to continuously operate and maintain the PWS so that the water was safe and sanitary in quality, clean and adequate in quantity, and chemically satisfactory for ordinary domestic consumption. The Respondent failed to adequately operate and maintain the PWS demonstrated by the failure to monitor the PWS source water for water quality and contaminants. The Respondent served its PWS customers drinking water of unknown quality and quantity for ordinary domestic consumption during the period of October 1, 1998 through June 30, 2001, in violation of 327 IAC IC 13-18-16-6(a).

    1. Pursuant to IC 13-18-16-6(b), the person responsible for the operation of a public water supply system shall take all measures that are necessary to carry out the requirements of this rule so as to protect the quality and quantity of the raw water supply from the actual or threatened contamination. These measures include the relocation of the point of raw water collection to a site that is not contaminated or threatened by contamination.

      2. The Respondent failed to monitor the necessary organic and inorganic contaminants in the source water, in order to detect actual or threatened contamination of the raw water supply. Therefore, the Respondent failed to protect the quality and quantity of the raw water supply for the PWS from actual or threatened contamination, in violation of IC 13-18-16-6(b).

    2. Pursuant to IC 13-18-16-7, a person responsible for the operation of public water supplies shall submit samples of water for analysis and reports of operation pertaining to the sanitary quality, chemical quality, or adequacy of those supplies that the commissioner requests. The operator certified under IC 13-18-11 must verify under oath the reports of operation.

      3. The Respondent failed to submit samples of water for analysis; failed to submit reports of operation pertaining to the sanitary quality, chemical quality, and adequacy of the supply; and failed to verify under oath the reports of operation submitted for the PWS from October 1, 1998 through June 30, 2001, in violation of IC 13-18-16-7.

    3. Pursuant to 327 IAC 8-2-4(d) and (e), all public water systems shall monitor to determine compliance with the maximum contaminant levels ("MCLs") for Inorganic Compounds ("IOCs").

      4. The Respondent failed to monitor its water for antimony, arsenic, asbestos, barium, beryllium, cadmium, chromium, cyanide (free), mercury, nickel, selenium, and thallium during the calendar year of 2000, in violation of 327 IAC 8-2-4(d) and (e).

    4. Pursuant to 327 IAC 8-2-5.1(4), each community and nontransient noncommunity water supply is required to collect four consecutive quarterly samples for Synthetic Organic Compounds ("SOCs") beginning in its initial compliance period. A system serving 3,300 or fewer persons which does not detect any SOCs during its initial compliance period may reduce its SOC monitoring to one sample during each repeat compliance period.

      5. The Respondent failed to collect at least three SOC samples during the period of October 1, 1999 through September 30, 2000 in violation of 327 IAC 8-2-5.1(4).

    5. Pursuant to 327 IAC 8-2-5.1(4), to determine compliance with section 5(a) of this rule, collection of samples for organic chemical testing, other than Volatile Organic Compounds (VOCs) and total trihalomethanes, shall be made in accordance with this rule.

      6. According to IDEM's records, the Respondent failed to monitor and report SOCs (including polychlorinated biphenyls ("PCBs") and Dioxins), for a total of three calendar quarters during the period of October 1, 1999 through September 30, 2000, in violation of IC 13-18-16-6(a), IC 13-18-16-6(b), IC 13-18-16-7, 327 IAC 8-2-5.1(4).

    6. Pursuant to 327 IAC 8-2-5.5, a community water system and nontransient noncommunity water system shall collect and analyze samples for VOCs, in order to determine compliance with section 5.4 of this rule.

      7. According to IDEM's records, the Respondent failed to monitor and report VOCs for three quarters during the period of October 1, 1998 through September 30, 1999, in violation of IC 13-18-16-6(a), IC 13-18-16-6(b), IC 13-18-16-7, and 327 IAC 8-2-5.5.

    7. Pursuant to 327 IAC 8-2-13(a), the supplier of water shall, except where a shorter period is specified in this rule, report to the commissioner the results of any test measurement or analysis required by this rule within:

      1. the first 10 days following the month in which the result is received; or

      2. the first 10 days following the end of the required monitoring period as stipulated by the commissioner, whichever is shorter.

The Respondent failed to report the results of at least three VOC samples during the period of October 1, 1998 through September 30, 1999 to the commissioner within the first 10 days following the end of the required monitoring period, in violation of 327 IAC 8-2-13(a).

The Respondent failed to report the results of at least three SOC samples during the period of October 1, 1999 through September 30, 2000 to the commissioner within the first 10 days following the end of the required monitoring period, in violation of 327 IAC 8-2-13(a).

The Respondent failed to report the result of the calendar year 2000 IOC testing analysis to the commissioner within the first 10 days following the end of the required monitoring period, in violation of 327 IAC 8-2-13(a).

    1. Pursuant to 327 IAC 8-2-15(d)(3)(B), the owner or operator of a PWS which fails to perform monitoring, shall notify persons served by the system within three months of the violation by hand delivery or by continuous posting in conspicuous places within the area served by the system. Posting must continue for as long as the violation exists. Notice by hand delivery must be repeated at least every three months for as long as the violation exists.

      2. The Respondent failed to notify persons served by its well of its failure to monitor at least three VOC samples during the period of October 1, 1998 through September 30, 1999, in violation of 327 IAC 8-2-15(d).

      The Respondent failed to notify persons served by its well of its failure to monitor at least three SOC samples during the period of October 1, 1999 through September 30, 2000, in violation of 327 IAC 8-2-15(d).

      The Respondent failed to notify persons served by its well of its failure to monitor IOC testing for the calendar year of 2000, in violation of 327 IAC 8-2-15(d).

    2. Pursuant to 327 IAC 8-2-37, each community and nontransient noncommunity public water supply shall monitor for lead and copper. The Respondent failed to monitor for lead and copper during the semi-annual monitoring periods of July to December 1999, January to June 2000, and January to June 2001, in violation of 327 IAC 8-2-37.

    3. On November 9, 2001, a Notice of Violation was issued, pursuant to IC 13-30-3-3 to the Respondent for violation of IC 13-18-16-6(a), IC 13-18-16-6(b), IC 13-18-16-7, 327 IAC 8-2-4(d) and (e), 327 IAC 8-2-5.1(4), 327 IAC 8-2-5.5, 327 IAC 8-2-13(a), 327 IAC 8-2-15(d)(3)(B), and 327 IAC 8-2-37. The Respondent received this Notice of Violation on November 13, 2001 via Certified Mail # 7000 0600 0026 8340 8268 and # 7000 0600 0026 8340 8251.

    4. The Notice of Violation contained an offer to enter into an Agreed Order containing actions required to correct the violation.

    5. IDEM issued a Request for Response to the Notice of Violation, on February 1, 2002, pursuant to IC 13-30-3-3, to the Respondent for violations cited in the Notice of Violation and the Proposed Agreed Order. IDEM’s Request for a Response to the Notice of Violation repeated the offer to enter into an Agreed Order containing actions required to correct the violations. The Respondent’s president and its registered agent received this request on February 4, 2002, via Certified Mail # 7000 0600 0026 8293 8506 and # 7000 0600 0026 8293 8490.

      6. On March 14, 2002 the Respondent faxed a copy of a water bill to the IDEM Drinking Water Branch ("DWB"). The copy of the water bill indicated that the Respondent had connected to the drinking water distribution system of the City of Lafayette, Tippecanoe County, Indiana. The Respondent also claimed to have inactivated its PWS.

    6. More than 60 days have elapsed since the Respondent was offered the opportunity to enter into an Agreed Order.

    7. The Respondent has not entered into an Agreed Order resolving these violations which occurred during the time its PWS was active.

 

ORDER

1. The Respondent shall immediately cease and desist violation of IC 13-18-16-6(a), IC 13-18-16-6(b), IC 13-18-16-7, 327 IAC 8-2-4(d) and (e), 327 IAC 8-2-5.1(4), 327 IAC 8-2-5.5, 327 IAC 8-2-13(a), 327 IAC 8-2-15(d)(3)(B), and 327 IAC 8-2-37.

2. Within 30 days of the Effective Date of this Order, the Respondent shall submit official documentation to the IDEM Office of Enforcement (OE), which satisfactorily demonstrates the Respondent’s public water system (PWS) is currently inactive and a written certification from the Respondent that the PWS will not be reactivated without appropriate notice to and approval from IDEM.

3. All submittals required by this Order, unless notified otherwise in writing, shall be sent to:

Ms. Stacie Tucker, Enforcement Case Manager

Office of Enforcement

Indiana Department of Environmental Management

100 N. Senate Avenue

P. O. Box 6015

Indianapolis, IN 46206-6015

4. The Respondent shall pay a civil penalty of Fifteen Thousand, Seven Hundred, and Fifty dollars ($15,750) for violation of IC 13-18-16-6(a), IC 13-18-16-6(b), IC 13-18-16-7, 327 IAC 8-2-4(d) and (e), 327 IAC 8-2-5.1(4), 327 IAC 8-2-5.5, 327 IAC 8-2-13(a), 327 IAC 8-2-15(d)(3)(B), and 327 IAC 8-2-37. This penalty shall be remitted to the Department of Environmental Management within 30 days of the Effective Date of this Order. The check(s) shall be made payable to the Environmental Management Special Fund, with the Case Number indicated on the check(s) and mailed to:

Cashier

IDEM

P.O. Box 7060

Indianapolis, Indiana 46207-7060

5. This Order shall apply to and be binding upon the Respondent, its successors and assigns. No change in ownership, corporate, or partnership status of the Respondent shall in any way alter its status or responsibilities under this Order.

 

EFFECTIVE DATE OF ORDER

Pursuant to IC 13-30-3-5, this Order takes effect 20 days following receipt unless you request review of this Order, before the 20th day after receipt, by filing a written request for review with the Office of Environmental Adjudication, and serving a copy of the request for review upon the Commissioner of the Indiana Department of Environmental Management. You may request that the Office of Environmental Adjudication conduct a hearing to review this Order, under IC 4-21.5, in its entirety, or you may limit your request for review to specific findings of fact and/or orders contained in this Order. Requests for review must be submitted to the Office of Environmental Adjudication and the Commissioner of the Indiana Department of Environmental Management at the following addresses:

Director Commissioner

Office of Environmental Adjudication IDEM

ISTA Building Indiana Government Center North

150 W. Market Street, Suite 618 100 N. Senate

Indianapolis, Indiana 46204 P.O. Box 6015

Indianapolis, Indiana 46206-6015

Failure to properly submit a request for review, before the 20th day following receipt of this Order of the Commissioner, waives your right to administrative review of this Order and your right to judicial review of the Order. The petition for administrative review must contain the following information:

1. Name, address, and telephone number of each person filing the petition.

2. Identification of the interest of each petitioner in the subject of the petition.

3. Statement of facts demonstrating that the petitioner is:

A. a person to whom the order is directed;

B. aggrieved or adversely affected by the order; or

C. entitled to review under any law.

4. Statement with particularity the legal issues proposed for consideration in the proceedings.

The petition for administrative review should also contain the following information:

1. Identification of any persons represented by the person making the request.

2. Statement identifying the person against whom administrative review is sought.

3. A copy of the notice of the commissioner’s action issued by the department of environmental management which is the basis of the petition for administrative review.

4. Statement indicating the identification of petitioner’s attorney or other representative.

 

If you have procedural or scheduling questions regarding your request for review you may contact the Office of Environmental Adjudication at (317) 232-8591.

 

Dated at Indianapolis, Indiana, this __11th_________ day of _October 18, 2002____.

 

Signed by Lori F. Kaplan

______________________________

Lori F. Kaplan

Commissioner

cc: U.S. EPA, Region 5, Office of Water

Tippecanoe County Health Department

http://www.state.in.us/idem