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. 2001-10719-W

)

KADA CORPORATION, AKA )

KADA PARTNERSHIP, )

)

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. Pursuant to 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 (AComplainant@) of the Indiana Department of Environmental Management, a department of the State of Indiana created by IC 13-13-1-1.

 
    1. Respondent is KADA Corporation, AKA KADA Partnership, owner of the McDonald's Restaurant, (ARespondent@), which is a nontransient noncommunity public water supply system (PWS) operating under PWSID# 2710921, located at 12880 State Road 23 in Granger, St. Joseph County, Indiana.
    1. The Indiana Department of Environmental Management (AIDEM@) has jurisdiction over the parties and the subject matter of this action.
    1. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation (NOV) on October 23, 2001 via Certified Mail to:

      2. Mr. David Sparks, Registered Agent

      KADA Corporation

      118 South Mill Street

      Mishawaka, Indiana 46544

    2. The McDonald's Restaurant in Granger was originally identified as a PWS on October 28, 1999. At that time, based upon information the Respondent provided to IDEM's Office of Water Quality (OWQ), Drinking Water Branch (DWB) field inspector, the population served was determined to be 1,465 customers. In January 2001, the population served was re-classified as 1,034 customers. In March 2001, the Respondent requested a re-classification to a population of 1,000 customers served. On August 29, 2001, IDEM's OWQ Compliance Section issued a letter to the Respondent granting the requested re-classification and informing the Respondent that beginning in the 3rd Quarter of 2001, bacteriological samples would be required to be sampled on a quarterly basis.

6. A records review on August 7, 2001 was conducted by a representative of IDEM=s OWQ. The following violations were in existence at the time of this records review:
    1. Pursuant to 327 IAC 8-2-5.5, each community and nontransient noncommunity water system shall collect samples for volatile organic compounds (VOCs) testing in order to determine compliance with the maximum contaminant levels (MCLs) for VOCs. Respondent failed to monitor for compliance with the MCLs for VOCs for the second and third quarters of 2000 in violation of 327 IAC 8-2-5.5.
    2. Pursuant to 327 IAC 8-2-8, public water systems (PWS) must collect total coliform samples at sites which are representative of water throughout the distribution system according to a written sample siting plan approved by the commissioner. Respondent failed to monitor for coliform for November and December 1999, February, March, April, May, June, August, September, November and December 2000, January, March, April, May, and June 2001 in violation of 327 IAC 8-2-8.
    3. Pursuant to 327 IAC 8-2-13(a), except where a shorter period is specified in this rule, the supplier of water shall report to the commissioner the results of any test measurement or analysis required by this rule within:
    1. the first ten (10) days following the month in which the result is received; or
    2. the first ten (10) days following the end of the required monitoring period as stipulated by the commissioner, whichever is shorter.

Pursuant to 327 IAC 8-2-13(c), the supplier of water, upon initiation of each public notification required by section 15 of this rule, shall submit to the commissioner a representative copy of each type of notice distributed, published, posted, or made available to the person served by the system or to the media.

Respondent failed to submit monthly monitoring reports of test results and copies of public notification for total coliform for the months of November and December 1999, February, March, April, May, June, August, September, November and December 2000, January, March, April, May, and June 2001; for lead and copper for the monitoring periods of June 1 though September 30, 1999 and June 1 through September 30, 2000; and for compliance with the MCLs for VOCs for the second and third quarters of 2000 in violation of 327 IAC 8-2-13.

D. Pursuant to 327 IAC 8-2-15, the owner or operator of a PWS which fails to comply with the applicable MCL or treatment technique established by this rule, or which fails to comply with the requirements of any schedule prescribed pursuant to a variance or exemption, shall initially notify persons served by the system by issuing a "Public Notice" (PN) to the population served via hand delivery, regarding this violation.

Pursuant to 327 IAC 8-2-15(1), a PWS owner or operator shall notify persons served by the system by publication in a daily newspaper of general circulation in the area served by the system as soon as possible, but in no case later than fourteen (14) days after the violation or failure.

Pursuant to 327 IAC 8-2-15(2), a PWS owner or operator shall notify persons served by the system for violation, proof of PN(s) applicable to the violations identified no later than forty-five (45) days after the violation or failure.

Respondent failed to provide public notification of failure to monitor for total coliform for the months of November and December 1999, February, March, April, May, June, August, September, November and December 2000, January, March, April, May, and June 2001; failure to monitor for lead and copper for the monitoring periods of June 1 though September 30, 1999 and June 1 through September 30, 2000; and failure to monitor for compliance with the MCLs for VOCs for the second and third quarters of 2000 in violation of 327 IAC 8-2-15.

E. Pursuant to 327 IAC 8-2-37, all public water systems are required to monitor for compliance with lead and copper. Respondent failed to monitor for lead and copper for the monitoring periods of June 1 through September 30, 1999 and June 1 through September 30, 2000 in violation of 327 IAC 8-2-37.
    1. Subsequent to the issuance of the NOV on October 23, 2001, a Settlement Conference between the Respondent and designated representatives of IDEM was held on December 4, 2001 to discuss the specific violations that were cited. Following discussion, it was determined that in order to resolve possible discrepancies between IDEM's and the Respondent's files, the OWQ Drinking Water Compliance Section would provide the Respondent with a list of the required testing and monitoring results and public notices that were still missing from the files. Following receipt of that list, the Respondent would provide IDEM with copies of any previously conducted testing or monitoring results or posted public notices that were missing from IDEM's files. Listed below are changes to the originally cited violations to reflect information received after the Settlement Conference:

    1. The monitoring results for compliance with the MCLs for VOCs for the second and third quarters of 2000 have been subsequently submitted and received.
    2. Total coliform monitoring results for April 2000 and April 2001 have been received by the OWQ Drinking Water Branch Compliance Section.
    3. Public notification is required for the failure to monitor for lead and copper for the monitoring periods from January through June for the years 2000 and 2001. As the monitoring results for total coliform for April 2000 and April 2001 and for VOCs for the second and third quarters of 2000 have been received, copies of public notification are not required for those monitoring periods.
    4. The correct monitoring periods for lead and copper for the Respondent's PWS are January through June and July through December annually. The results for the July through December monitoring periods for the years 1999 and 2000 and for the monitoring period from January through June 2001 have been received. Results from the monitoring period from January through June for the year 2000 have not been received, in violation of 327 IAC 8-2-37.

8. In recognition of the settlement reached, 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.
    1. Respondent shall comply with 327 IAC 8-2-5.5, 327 IAC 8-2-8, 327 IAC 8-2-13, 327 IAC 8-2-15, and 327 IAC 8-2-37.
    2. Within 30 days of the Effective Date of this Agreed Order, the Respondent shall provide public notification for the failure to monitor for lead and copper for the monitoring period from January through June for the year 2000.
    3. Immediately upon the Effective Date of this Agreed Order, the Respondent shall provide to IDEM documentation that a certified operator with a minimum classification of "DSS" for the distribution system and a minimum classification of "WT1" for the water treatment plant is on site for a minimum of 3 daily visits per week.
    4. All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:

      5. Ms. Christina Sorensen, Enforcement Case Manager

      Office of Enforcement

      Indiana Department of Environmental Management

      100 N. Senate Avenue

      P. O. Box 6015

      Indianapolis, IN 46206-6015

    5. Respondent is assessed a civil penalty of Ten Thousand Four Hundred Sixty Dollars ($10,460). 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.
    6. In the event the terms and conditions of the following paragraphs are violated, the Complainant may assess and the Respondent shall pay a stipulated penalty in the following amount:

    Paragraph

    Violation

    Penalty

    Order Paragraph 3

    Failure to provide public notification as required

    $500 per event and per week late

    Order Paragraph 4

    Failure to have a certified operator with the required minimum classification(s) on site a minimum of three days per week

    $500 per each week
  1. Stipulated penalties shall be due and payable within thirty (30) days after 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 Respondent=s violation of this Agreed Order or Indiana law, including, but not limited to, civil penalties pursuant to IC 13-30-4.
  2. 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

IDEM

100 N. Senate Avenue

P. O. Box 7060

Indianapolis, IN 46207-7060

    1. In the event that the civil penalty required by Order paragraph 6, 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.
    2. 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.
    3. 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.
    4. The 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.
    5. This Agreed Order shall remain in effect until Respondent has complied with paragraphs 3 through 10 of this Agreed Order and IDEM issues a close-out letter.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

TECHNICAL RECOMMENDATION: RESPONDENT:

Department of Environmental Management

By: _________________________ By: _________________________

Mark W. Stanifer, Chief

Water Enforcement Section Printed: ______________________

Office of Enforcement

Title: ________________________

Date: ________________________ Date: ________________________

 

COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:

Department of Environmental Management

By: _________________________ By: ________________________

Office of Legal Counsel

Department of Environmental Management

Date: _______________________ Date: ______________________

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _____ DAY OF ____________________, 2003.

 

 

For the Commissioner:

 

Signed August 21, 2003

Felicia A. Robinson

Deputy Commissioner

for Legal Affairs