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STATE OF |
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BEFORE THE INDIANA
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COMMISSIONER OF THE
DEPARTMENT Complainant, v. RAY E. and DIANNE L. PLUMMER, Respondent. |
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AGREED ORDER
The Complainant and the
Respondents 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. Respondents' entry into this Agreed Order
shall not constitute a waiver of any defense, legal or equitable, which
Respondents 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 of the Indiana Department of
Environmental Management ("Complainant"), a department of the State
of
2. The Respondents are Ray E. and Dianne L. Plummer, husband
and wife ("Respondents"), who owned and operated a community public
water supply at the Meadow Ridge Apartments located at North Meadow Ridge Drive
and County Road 400 North, near Warsaw, in Kosciusko County, Indiana (the
"Site").
3. The
4. Pursuant to IC 13-30-3-3, on May 9, 2006, IDEM issued a
Notice of Violation via Certified Mail to:
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Ray E. and Dianne L. Plummer, Owner |
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Meadow Ridge Apartments |
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5. Pursuant
to 327 IAC 8-2-1(51) & (60), "Public water system" means a public
water supply for the provision to the public of water for human consumption
through pipes or other constructed conveyances, if such system has at least
fifteen (15) service connections or regularly serves at least twenty-five (25)
individuals daily at least sixty (60) days out of the year. "Public water system" includes any
collection, treatment, storage, and distribution facilities under control of
the operator of such system, and used primarily in connection with such system
and any collection or pretreatment storage facilities not under such control
that are used primarily in connection with such system. A public water system is either a community
water system or a noncommunity water system, as defined in subdivisions (8) and
(51).
Pursuant
to 327 IAC 8-2-1(8), "Community water system" means a public water
system which serves at least fifteen (15) service connections used by
year-round residents or regularly serves at least twenty-five (25) year-round
residents.
Pursuant to IC 13-18-16-6(a), all public water
supplies shall be continuously operated and maintained so that water is safe in
quality, clean and adequate in quantity, and chemically satisfactory for
ordinary domestic consumption.
Pursuant to IC 13-18-16-6(b), the person responsible
for the operation of a public water system shall take all measures that are
necessary to carry out the requirements of subsection (a) so as to protect the
quality and quantity of the raw water supply from actual or threatened
contamination.
Pursuant to 327 IAC 8-2-2(a),
each public water system shall comply with all of the provisions of this rule
and 327 IAC 8-2.1 unless the public water system meets all of the following
conditions:
(1) Consists
only of distribution and storage facilities and does not have collection and
treatment facilities.
(2) Obtains
all of its water from, but is not owned or operated by, a public water system
to which this article applies.
(3) Does not sell water to any person.
(4) Is not a carrier which conveys passengers
in interstate commerce.
Pursuant to 327 IAC 8-2.1-7, each owner or operator
of a public water system, must give notice for all violations of drinking water
regulations and for any other situation with a potential for adverse health
effects and shall notify persons served by the system in accordance with this
rule.
The Respondents allegedly owned
and operated the public water supply at the Meadow Ridge Apartments, with
public water supply identification (PWSID) number 5243009, located at North
Meadow Ridge Drive and County Road 400 North, in Warsaw, Kosciusko County (the
"Site"), which has collection facilities and does not obtain all of
its water from, and is not owned or operated by, a public water system.
On July 10, 2003, IDEM sent
notification to the Respondents that the Meadow Ridge Apartments facility had
been identified as a community public water system, and the Respondents were
notified of the monitoring requirements for Total Coliform, Nitrate, Nitrite,
Lead and Copper, Radionuclides, Inorganic Chemicals (IOCs), Volatile Organic
Compounds (VOCs), Synthetic Organic Compounds (SOCs), and Asbestos. The Respondents were notified that all
samples must be analyzed by a certified laboratory and must be submitted to
IDEM's Drinking Water Branch within 10 days of the end of each monitoring
period. The Respondents were also
notified of the requirement that the system be under the supervision of a
certified operator, and the requirement to submit Phase 1 of the Wellhead
Protection Plan.
According to IDEM's records,
during 2003, 2004, and 2005, the Respondents did not comply with the monitoring
and reporting provisions of 327 IAC 8-2 and 327 IAC 8-2.1, and therefore
violated 327 IAC 8-2-2(a), IC 13-18-16-6(a), and IC 13-18-16-6(b).
According to IDEM's records, during 2003, 2004, and
2005, the Respondents failed to notify persons served by the system when the
system failed to monitor and report required sample results for the required
testing parameters, in violation of 327 IAC 8-2-15, IC 13-18-16-6(a), and IC
13-18-16-6(b).
6. Pursuant
to 327 IAC 8-4.1-1(5), "Community public water supply system" or
"CPWSS" means a public water supply system that serves at least
fifteen (15) service connections used by year-round residents or regularly
serves at least twenty-five (25) year-round residents.
Pursuant to 327 IAC
8-4.1-1(28), "Wellhead protection program" or "WHPP" means
a program to sustain drinking water quality in ground waters that supply public
water supply wells and wellfields. The
program is mandated by the 1986 amendments to the federal Safe Drinking Water
Act, Title II, Section 205, Subsection 1428.
Pursuant to 327 IAC 8-4.1-2,
the WHPP is required for each well or wellfield providing ground water to a
CPWSS.
The Respondents allegedly owned
and operated the CPWSS at the Site and have not complied with the WHPP
provisions of 327 IAC 8-4.1, in violation of 327 IAC 8-4.1-2.
7. Pursuant
to IC 13-18-11-11(a), all water or wastewater treatment plants and water
distribution systems, whether publicly or privately owned, must be under the
supervision of an operator whose competency is certified to by the commissioner
in a classification corresponding to the classification of the plant or
distribution system to be supervised.
Pursuant to 327 IAC 8-12-1.1,
the owner or governing body of a water treatment plant or water distribution
system shall be responsible to place each water treatment facility and water
distribution system under the direct supervision of a certified operator.
The Respondents allegedly owned
and operated a water treatment plant or water distribution system at the Site
and did not place the system under the direct supervision of a certified
operator, in violation of IC 13-18-11-11(a) and 327 IAC 8-12-1.1.
8. On
July 19, 2006, IDEM met with the Respondents and the Respondents notified IDEM,
among other things, that the Respondents had sold the Meadow Ridge
Apartments. On August 29, 2006, the
Respondents submitted written notification to IDEM which stated, among other
things, that the Respondents sold the Meadow Ridge Apartments on or about April
27, 2006.
At
the July 19, 2006 meeting, and in the August 29, 2006 submittal, and at all
other times material hereto commencing with the first notification received
from IDEM, the Respondents contended that they do not believe the water system
at Meadow Ridge Apartments constitutes a public water system because none of
the 6 wells at the Site serve more than 2 duplex buildings (4 apartments) or
more than 16 individuals (assuming 4 persons per apartment), and the wells are
not connected.
IDEM
has consistently contended and so informed the Respondents that the water
system at the Meadow Ridge Apartments is a public water system because the
system in total is operated and controlled by the owner and provides water to
more than 15 units and more than 25 persons.
327 IAC 8-2-1 does not require that all components of a system be
connected.
9. In
recognition of the settlement reached, the Respondents waive 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 his delegate, and has
been received by the Respondents. This
Agreed Order shall have no force or effect until the Effective Date.
2. Should the Respondents purchase Meadow Ridge Apartments in
the future, the Respondents shall comply with IC 13-18-16-6(a), IC
13-18-16-6(b), 327 IAC 8-2-2(a), 327 IAC 8-2.1-7, 327 IAC 8-4.1-2, IC 13-18-11-11(a),
and 327 IAC 8-12-1.1.
3. The Respondents are assessed a civil penalty of Six Thousand
Five Hundred and Thirty Dollars ($6,530).
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.
Pursuant to IC 13-18-20, the Respondent has previously been assessed total fees
of $385 for public water supply fees for PWSID # IN5243009 in fees for 2005,
which remains unpaid. The $385 unpaid PWSID fee amount shall be due and payable
to the Indiana Department of Environmental Management within 30 days of the
Effective Date of this Agreed Order.
4. The civil penalty is payable by check to the Environmental
Management Special Fund. The check for
the civil penalty shall include the Case Number of this action
(2005-15454-W). The public water supply
fee is payable by check to the Indiana Department of Environmental
Management. The check for public water
supply fees shall include the Respondent's PWSID # IN5243009. Both checks shall be mailed to:
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Indiana
Department of Environmental Management |
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Cashiers
Office – Mail Code 50-10C |
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5. In the event that the civil penalty
required by Order Paragraph No. 3, is not paid within thirty days of the
Effective Date of this Agreed Order, the Respondents 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.
6. This Agreed Order shall apply to and be binding upon the
Respondents, their successors, and assigns.
The Respondents' 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 Respondents shall in any way alter its
status or responsibilities under this Agreed Order.
7. 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.
8. 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 the Respondents pursuant to this Agreed
Order, shall not in any way relieve the Respondents of their obligation to
comply with the requirements of any applicable permit or order or with any
other applicable federal or state law or regulation.
9. The Complainant does not, by its approval of this Agreed
Order, warrant or aver in any manner that the Respondents’ compliance with any
aspect of this Agreed Order will result in compliance with the provisions of any
permit or 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 the Respondents may
incur as a result of Respondents’ efforts to comply with this Agreed Order.
10. 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 seek additional civil
penalties for the violations specified in the Notice of Violation.
11. Nothing in this Agreed Order shall prevent IDEM or anyone
acting on its behalf from communicating with the United States Environmental
Protection Agency ("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 the Respondents may incur as a result of such communications
with the EPA or any other agency or entity.
12. This Agreed Order shall remain in effect until the Respondents
comply with the terms of Order Paragraph Nos. 3 through 5 and IDEM issues a
Close-Out letter.
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TECHNICAL RECOMMENDATION: |
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RESPONDENT: |
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Department of Environmental Management |
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Ray
E. and Dianne L. Plummer |
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By: |
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By: |
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Mark
W. Stanifer |
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Printed: |
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Section
Chief, Water Section |
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Title: |
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Office of Enforcement |
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COUNSEL FOR COMPLAINANT: |
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COUNSEL FOR RESPONDENT: |
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Department of Environmental Management |
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By: |
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Office of Legal Counsel |
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Date: |
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APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF
ENVIRONMENTAL |
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MANAGEMENT THIS |
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DAY
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, 2007. |
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For The Commissioner: |
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Signed on March 15, 2007 |
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Robert B. Keene |
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Assistant Commissioner |
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Office of Legal Counsel and Enforcement |
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