STATE OF INDIANA

)

SS:

BEFORE THE INDIANA DEPARTMENT OF

 

)

 

ENVIRONMENTAL MANAGEMENT

COUNTY OF MARION

)

 

 

 

 

 

COMMISSIONER OF THE DEPARTMENT

)

 

OF ENVIRONMENTAL MANAGEMENT,

)

 

 

)

 

 

)

 

Complainant,

)

 

 

)

Case No. 2018-25298-D

v.

)

Case No. 2018-25783-D

 

)

 

nk huntington holdings, LLC,

)

 

 

)

 

Respondent.

)

 

 

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.        NK Huntington Holdings, LLC (Respondent) owns and operates Valley View Estates Mobile Home Park, a community public water system (PWS) with PWSID No. IN5235014, serving 200 persons. The PWS is located at 4497 West 200 North, Huntington, Huntington County, Indiana (the Site).

 

3.        A Community Water System (CWS) as defined by 327 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 for Case No. 2018-25298-D via Certified Mail to:

 

Nick Kos

Justin R. Wall, Registered Agent

NK Huntington Holdings, LLC

NK Huntington Holdings, LLC

7857 Southwest 187th Terrace

309 N. Jefferson Street

Cutler Bay, Florida  33157

Huntington, Indiana  46750

 

6.          Additionally for violations found on November 13, 2018, Respondent waives issuance of a Notice of Violation and to the settlement period of sixty (60) days as provided for by IC 13-30-3-3.  The new violations are assigned to Case No. 2018-25783-D and are cited in Paragraphs 13 and 14 of the Findings of Facts.

7.        Pursuant to 327 Indiana Administrative Code (IAC) 8-2, each PWS shall comply with all provisions of this rule.

 

8.        Pursuant to IC 13-18-11-11(a), all water or wastewater treatment plants and water distribution systems, whether publically or privately owned, must be under the supervision of an operator whose competency is certified by the commissioner in a classification corresponding to the classification of the plant or distribution system to be supervised.

 

Pursuant to 327 IAC 8-11-1(a), all purification or treatment works producing water to be used or available for drinking purposes by the public shall be properly and efficiently operated under the supervision of a competent operator or superintendent.

 

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 accomplish the following:

 

(1)            Place each water treatment facility and water distribution system under the direct supervision of a certified operator in responsible charge who:

(A)          has a valid certification of a grade eligible for operation at the classification of water treatment facility or water distribution system of responsibility; and

(B)          is available to make process control or system integrity decisions about water quality or quantity that affect public health.

(2)            Designate one (1) certified operator to have complete responsibility for the proper operation of the water treatment plant or water distribution system.

(3)            Assure that a minimum of one (1) operator certified according to this rule must be available for each operating shift.

(4)            Notify the commissioner of the name of the person designated according to subdivision (1) to be the certified operator in responsible charge.

(5)            Submit written notice to the commissioner no later than 30 days after the occurrence of one (1) of the following:

(A)          A change in the person serving as the certified operator in responsible charge.

(B)          A change in conditions or circumstances that were used as the basis for the original classification of the water treatment plant or water distribution system.

 

IDEM records indicate Respondent failed to appoint a competent certified operator in responsible charge to operate and maintain the plant or distribution system, and failed to submit written notice to the commissioner within 30 days after a change in the person serving as the certified operator in responsible charge, in violation of IC 13-18-11-11(a), 327 IAC 8-11-1(a), and 327 IAC 8-12-1.1. IDEM received notification on April 9, 2018 that the current certified operator had resigned.

 

9.     Pursuant to 327 IAC 8-2.1-5(c), all community water systems are required to submit a Consumer Confidence Report (CCR) Certification by October 1 of each year certifying that the CCR has been distributed to its customers.

 

IDEM records indicate Respondent failed to submit a CCR Certification for 2015 and 2017 to IDEM, in violation of 327 8-2.1-5(c).

 

10.   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 2015, in violation of 327 IAC 8-2-44(d).

11.   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 October 17, 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 by October 17, 2015, as indicated in the Phase I approval letter. To date, IDEM has not received a Phase II WHPP from Respondent, in violation of 327 IAC 8-4.1-16(a)(2)(C).

12.   Pursuant to 327 IAC 8-2-8.2(h), PWSs using ground water shall respond in writing to any deficiency found during a sanitary survey that is reported to the PWS using ground water by the commissioner.  Response requirements are as follows:

(1)         The response must:

(A)      be made within thirty (30) days of receipt of the report; and

(B)      indicate:

(i)        how the PWS will address deficiencies found during the sanitary survey; and

(ii)       on what schedule the PWS will address deficiencies found during the sanitary survey.

(2)         The report must indicate whether deficiencies found during the sanitary survey are under control of the PWS.

 

Respondent failed to respond in writing to the deficiencies found during the August 24, 2016 and November 16, 2017 sanitary surveys, in violation of 327 IAC 8-2-8.2(h).

 

13.  Pursuant to IC 13-18-20.5-2(2), for public water systems, the annual operation fees for a community water system with four hundred (400) or fewer service connections, is three hundred fifty dollars ($350).

 

Pursuant to IC 13-18-20.5-4, in addition to the penalties prescribed under:

 

(1) IC 13-30-4-1;

(2) IC 13-30-4-2; and

(3) IC 13-30-5-1;

 

if a person does not remit a public water system annual operation fee or installment of the fee under IC 13-16-2 to the department not later than sixty (60) days after the date the fee is assessed or not later than thirty (30) days after the date the installment is due, the person shall be assessed a delinquency charge equal to ten percent (10%) of the fee or ten percent (10%) of the installment, whichever applies.

 

A delinquency charge assessed under this section is due and payable not later than sixty (60) days after the date a fee is assessed or not later than thirty (30) days after the date an installment of the fee is due under IC 13-16-2.

 

Respondent failed to pay the annual operation fee and associated late fees for 2016, 2017, and 2018. The invoices stated that IDEM may pursue enforcement action for non-payment of annual fees and any associated late fees. On May 2, 2018, IDEM, via electronic mail, informed Respondent that the below fees were due and payable by May 18, 2018 or an enforcement action will be taken. IDEM did not receive a response regarding payment.

 

Description

Invoice Date

Invoice Amount

2016 Annual Operation Fee

Invoice # 217924

January 12, 2016

$350.00

2016 Annual Operation Fee Payment Late Fee Invoice # 229974

May 19, 2016

$35.00

2017 Annual Operation Fee

Invoice # 238286

January 11, 2017

$350.00

2017 Annual Operation Fee Payment Late Fee Invoice # 249944

May 10, 2017

$35.00

2018 Annual Operation Fee

Invoice # 256221

January 12, 2018

$350.00

2018 Annual Operation Fee Payment Late Fee Invoice # 269951

 June 4, 2018

$35.00

TOTAL DUE

$1,155.00

 

14.       Pursuant to 40 CFR 141.855(b), a community PWS using ground water only and serving 1,000 or fewer people must monitor for total coliform each calendar month that the system provides water to the public.

 

Pursuant to 40 CFR 141.860(c)(1), failure to take every required routine or additional routine sample in a compliance period is a monitoring violation.

 

IDEM records indicate Respondent failed to monitor and report at least one total coliform sample from the PWS during the months of April, May, June, July, August, and September 2018, in violation of 40 CFR 141.854(f) and 40 CFR 141.860(c)(1).

15.     Pursuant to 40 CFR 141.861(a)(4), a system that has failed to comply with a coliform monitoring requirement must report the monitoring violation to the State within 10 days after the system discovers the violation, and notify the public in accordance with 40 CFR 141 subpart Q.

 

Pursuant to 327 IAC 8-2.1-7, the owner or operator of a PWS which fails to perform monitoring is required to notify persons served by the PWS. A copy of the public notice must also be sent to the Commissioner within 10 days after the completion of each public notice.

IDEM records indicate that Respondent failed to notify persons served by the PWS of the failure to monitor at least one total coliform sample from the PWS, required pursuant to 40 CFR 141.854(b) and 40 CFR 141.854(f), during April, May, June, July, August, and September, 2018, each in violation of 40 CFR 141.861(a)(4) and 327 IAC 8-2.1-7.

16.     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 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 8 through 15 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 30 days of the Effective Date, Respondent shall appoint a competent certified operator in responsible charge with a valid certification of a class appropriate for the plant or distribution system, and submit documentation to IDEM. The documentation shall include the certified operator’s name, a copy of their operator’s license, their contact information, and the effective date of the change in operator.

 

3.     Within 30 days of the Effective Date, Respondent shall submit the CCR Certification for 2015 and 2016 to IDEM, certifying that the CCR has been distributed to its customers.

 

4.     Within 30 days of the Effective Date, Respondent shall deliver the Consumer Notice of Lead Results in Drinking Water form (attached) to persons served by the water system at the specific sites that were tested in 2015.

 

5.     Within 10 days of issuing the 2015 Consumer Notice of Lead Results in Drinking Water form to persons served by the PWS, Respondent shall send to IDEM a signed Certification Form for Consumer Notice of Lead Results (attached).

 

6.     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.    Updated schedule of implementation.

c.    Updated wellhead protection area (WHPA), considering new data if any.

d.    Updated potential sources of contamination inventory.

e.    Report of any problems or concerns regarding WHPP.

f.      Contingency plan revisions (if needed).

g.    Documentation to confirm:

                   i.         Sanitary Setback Area meets requirements.

                 ii.         Abandoned wells are identified.

                iii.         Wellhead is secured from unauthorized access.

                iv.         All potential sources of contamination within the WHPA are managed.

                 v.         Public education is ongoing.

                vi.         Any new ground water contamination within the WHPA is reported.

 

7.     Within 30 days of the Effective date, Respondent shall submit a report which identifies how the Respondent will address deficiencies found during the sanitary survey and on what schedule the PWS will address deficiencies found during the August 25, 2016 and November 8, 2017 sanitary surveys. The report must indicate whether deficiencies found during the sanitary survey are under control of the PWS.

 

8.        Beginning immediately upon the Effective Date, Respondent shall, for the purposes of this Order, monitor and report at least one total coliform sample in the PWS per month for six (6) consecutive months of operation (Compliance Demonstration). During the Compliance Demonstration period, Respondent shall be subject to stipulated penalties.

 

It is the responsibility of Respondent to continue monitoring for total coliform monthly pursuant to 40 CFR 141.854(f).

 

9.        If the results of any sample for total coliform required by Order Paragraph 8 indicate a positive result, the following actions shall be taken:

 

A.            Further analyze the positive sample for E. coli; and

B.            Contact Sandra Decastro, IDEM’s Compliance Section, Drinking Water Branch, immediately at (317) 234-7444, for further instructions, and complete all requirements as instructed.

 

Respondent shall be subject to stipulated penalties for failure to complete any requirements in accordance with IDEM’s notification(s), following a Maximum Contaminant Level (MCL) exceedance.

 

10.     Within 30 days of the Effective Date, Respondent shall provide public notice, for the past total coliform monitoring and reporting violations listed in Paragraph 16 of the Findings of Facts above, by following these steps:

 

A.            Complete attached public notice and Certification form for public notice.

B.            Post public notice where the public has ready access for viewing, and for as long as the violation persists, but in no case less than seven days, even if the violation is resolved.

C.            Within 10 days of issuing the public notice, Respondent shall send to IDEM a signed Certification form for public notice and representative copy of the public notice issued. The forms that address the past total coliform monitoring violations accompany this Agreed Order.

 

11.     Immediately upon the Effective Date, for future monitoring and/or reporting violations, Respondent shall provide public notice to the State within 10 days and notify the public pursuant to 40 CFR 141.861(a)(4) and 327 IAC 8-2.1-7.

 

12.   Within 30 days of the Effective Date, Respondent shall submit payment for the fees stated in Finding of Facts, Paragraph 11. Said fee payment shall be due and payable within 30 days of the Effective Date, the 30th day being a “Due Date.”

 

Checks shall include the Case Number 2018-25298-D and Invoice Number, and shall be mailed to:

 

Indiana Department of Environmental Management

P.O. Box 3295

Indianapolis, Indiana 46206-3595

 

Payment online may be completed as follows:

 

1.     www.in.gov/IDEM

2.     Under “Online Services” [scroll towards the bottom of the page]

3.     Select “Online Payment Options”

4.     Select payment by “eCheck” or “Credit Card”

5.     Under “Transaction Item”

6.     Select “Invoice Payments” and follow the prompts

 

13.   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 14.

 

14.   All submittals required by this Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall be sent to:

 

Patrick Colcord, Enforcement Case Manager

Office of Water Quality – IGCN 1255

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

15.      Respondent is assessed and agrees to pay a civil penalty of Three Thousand

Seventy-Five Dollars ($3,075). 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.”

 

16.   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 appoint a competent certified operator.

$500 per week, or part thereof.

2

Failure to submit a written notice as required.

$300 per week, or part thereof.

3

Failure to submit the CCR certifications to IDEM.

$300 per week late, or part thereof.

4

Failure to deliver the Consumer Notice of Lead Results in Drinking Water form to persons served.

$300 per week, or part thereof.

5

Failure to send to IDEM the Certification Form for Consumer Notice of Lead Results.

$300 per week, or part thereof.

6

Failure to submit a Phase II WHPP to IDEM.

$200 per week, or part thereof.

7

Failure to submit the report to IDEM.

$300 per week, or part thereof.

7

Failure to complete future action, if applicable, by the completion date stated in the report.

$300 per week, or part thereof.

8

Failure to monitor and report required samples.

$250 per violation.

9

Failure to comply with any or all of the requirements of this paragraph.

$300 per week for violation of any part of this requirement.

10

Failure to comply with any or all of the requirements of this paragraph.

$250 per week, or part thereof, past the 30-day deadline.

11

If applicable, failure to provide public notice.

$250 per week, or part thereof.

13

Failure to submit the “System Basic Information Summary” document in the manner specified.

$100 per week, or part thereof.

 

17.   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.

 

18.   Civil and stipulated penalties are payable by check to the “Environmental Management Special Fund.” Checks shall include the Case Number 2018-25298-D, of this action and shall be mailed to:

 

Office of Legal Counsel

Indianapolis Department of Environmental Management

IGCN, Room N1307

100 North Senate Avenue

Indianapolis, IN 46204

 

19.   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.

 

20.   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.

 

21.   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.

 

22.   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.

 

23.   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.

 

24.   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.

 

25.   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.

 

26.   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.

 

27.   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

NK Huntington Holdings, LLC

 

By:__________________________

By:________________________

Samantha K. Groce, Chief

 

Water Enforcement Section

 

Surface Water, Operations &

Printed:_____________________

Enforcement Branch

 

Office of Water Quality

Title:_______________________

 

 

Date:________________________

Date:_______________________

 

 

COUNSEL FOR RESPONDENT:

 

 

 

By:________________________

 

 

 

Date:______________________

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS ___________ DAY OF ________________, 20___.

 

 

For The Commissioner:

 

 

Signed on March 11, 2019

 

Martha Clark Mettler

 

Assistant Commissioner

 

Office of Water Quality