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STATE OF INDIANA |
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BEFORE THE INDIANA DEPARTMENT OF |
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ENVIRONMENTAL MANAGEMENT |
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COUNTY OF MARION |
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COMMISSIONER OF THE DEPARTMENT |
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OF ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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v. |
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Case No. 2018-25377-D |
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Wilbur Sharp and Betty Sharp |
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d.b.a Colonial Mobile Court, |
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Respondent. |
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AGREED ORDER
Complainant
and 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 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. 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 (Complainant)
of the Indiana Department of Environmental Management (IDEM), a department of
the State of Indiana created by IC 13-13-1-1.
2.
Wilbur Sharp and Betty Sharp d.b.a Colonial Mobile Court (Respondents) own and/or operate a community public
water system (PWS) with PWSID No. IN5246005, serving 97 persons. The PWS is
located at 6302 North 400 West, Michigan City, LaPorte County, Indiana (the Site).
3.
IDEM has jurisdiction over the parties and the
subject matter of this action pursuant to IC 13-30-3.
4.
Pursuant to IC 13-30-3 et seq., IDEM issued a
Notice of Violation via Certified Mail to:
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Mr. Wilbur
Sharp & Ms. Betty Sharp, Owners |
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Colonial
Mobile Court |
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6302 North
400 West |
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Michigan
City, IN, 46360 |
5.
Pursuant to 327 Indiana Administrative Code
(IAC) 8-2-2, each PWS shall comply with all provisions of this rule and 327 IAC
8-2.1.
6.
40
Code of Federal Regulations (CFR) Part 141, Subpart Y (Revised Total Coliform
Rule), was incorporated in a State emergency rule on February 10, 2016 (LSA
#16-87E), which was effective February 12, 2016 through May 12, 2016. The State
emergency rule was readopted May 12, 2016, August 11, 2016, and November 9,
2016. The applicable rule was incorporated into Indiana rules through the
regular rulemaking process and became effective February 17, 2017. The federal
Revised Total Coliform Rule is effective and applicable as adopted at 327 IAC
8-2.4-1.
7.
Pursuant
to 40 CFR 141.853(a), a PWS must develop a written site sampling plan that
identifies a sample collection schedule and sampling sites that are
representative of water throughout the distribution system not later than March
31, 2016. These plans are subject to State review and revision. Systems must
collect total coliform samples according to the written site sampling
plan. Monitoring required by 40 CFR
141.854 through 40 CFR 141.858 may take place on a customer’s premise,
dedicated sampling station, or other designated compliance sampling location.
Routine and repeat sample sites and any sampling points necessary to meet the
requirements of 40 CFR 141 Subpart S must be reflected in the site sampling
plan.
IDEM
records indicate that Respondents failed to submit a site sampling plan by
March 31, 2016, and IDEM has not received a site sampling plan from Respondents
to date, in violation of 40 CFR 141.853(a).
Respondent
submitted the site sampling plan to IDEM on September 28, 2018.
8.
Pursuant
to 40 CFR 141.854(f), a
system on quarterly or annual monitoring that experiences any of the events
identified in paragraphs (f)(1) through (f)(4) of this section must begin monthly
monitoring the month following the event. The system must continue monthly or
quarterly monitoring until the requirements in paragraph (g) of this section
for quarterly monitoring or paragraph (h) of this section for annual monitoring
are met.
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 Respondents failed to monitor and report at least one total
coliform sample from the PWS during the months of February, September, and
October 2017 and January 2018, in violation of 40 CFR 141.854(f) and 40 CFR
141.860(c)(1).
9.
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(b)(1)(C),
owners or operators of a PWS must give public notice for failure to perform
water quality monitoring, as required by drinking water regulations.
IDEM records
indicate that Respondents 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 the months of
September, October 2017, and January 2018, each in violation of 40 CFR 141.861(a)(4) and 327 IAC 8-2.1-7(b)(1)(C).
On September 16,
2018, Respondent notified persons served by the PWS of the failure to monitor
at least one total coliform sample from the PWS during the months of September,
October 2017, and January 2018.
10.
Pursuant to 327 IAC 8-2.1-2(a), an existing
community water system is required to submit a Consumer Confidence Report (CCR)
by July 1 annually.
IDEM records
indicate Respondents failed to submit a CCR for 2015 and 2016 to its customers,
in violation of 327 IAC 8-2.1-2(a).
Respondent
submitted the CCR for 2015 and 2016 to IDEM on September 28, 2018.
11.
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 Respondents failed to submit a CCR Certification for 2015 and 2016 to
IDEM, in violation of 327 8-2.1-5(c).
Respondent
submitted the CCR Certification for 2015 and 2016 to IDEM on September 28,
2018.
12.
Pursuant to Indiana Code (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 Respondents 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 determined the certified operator’s license
was renewed March 29, 2018.
13.
Pursuant to 327 IAC 8-12-3.4(d)(1), if an operator
certified under grandparenting fails to meet the
continuing education requirements within the required time, then the
grandparent certification is voided and the operator must become certified
according to the requirements of this rule.
IDEM records indicate Respondent
failed to meet the continuing education requirements, in violation of 327 IAC
8-12-3.4(d)(1).
IDEM determined Respondent completed
the continuing education requirements on March 19, 2018.
14.
In recognition of the settlement reached,
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 adopted by Complainant or Complainant’s delegate (as evidenced
by signature), and the adopted Agreed Order has been received by Respondents.
This Agreed Order shall have no force or effect until the Effective Date. In
addition to addressing the violations cited in Paragraphs 7 through 13 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.
Beginning immediately upon the Effective Date,
Respondents shall, for the purposes of this Order, monitor and report at least
one total coliform sample in the PWS per month for 5 consecutive months of
operation (Compliance Demonstration). During the Compliance Demonstration
period, Respondents shall be subject to stipulated penalties.
It is the responsibility of Respondents
to continue monitoring for total coliform monthly pursuant to 40 CFR 141.854(f).
3.
If the results of any sample for total coliform
required by Order Paragraph 2 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.
Respondents
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.
4.
Immediately upon the
Effective Date, for future monitoring and/or reporting violations, Respondents
shall provide public notice to the State within 10 days and notify the public
pursuant to 40 CFR 141.861(a)(4).
5.
All submittals required by this Agreed Order,
unless Respondents are notified otherwise in writing by IDEM, shall be sent to:
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Olivia Kuss, Enforcement Case Manager |
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Office of Water Quality – IGCN 1255 |
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Indiana Department of Environmental Management |
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100 North Senate Avenue |
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Indianapolis, IN 46204-2251 |
6.
In the event the terms and conditions of the
following paragraphs are violated, Complainant may assess and Respondents shall
pay a stipulated penalty in the following amount:
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Paragraph: |
Violation: |
Stipulated
Penalty: |
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Failure to
monitor and report required samples. |
$250 per
violation. |
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Failure to
comply with any or all of the requirements of this paragraph. |
$250 per
week, or part thereof, past the 30-day deadline. |
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If
applicable, failure to provide public
notice. |
$250 per
week, or part thereof. |
7.
Stipulated penalties shall be due and payable no later than the 30th day after
Respondents receive written notice that IDEM has determined a stipulated
penalty is due, the 30th day
being a “Due Date.” IDEM may notify Respondents at any time that a stipulated
penalty is due. Failure to notify Respondents 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
Respondents for violation of this Agreed Order. Neither assessment nor payment of stipulated penalties
shall preclude IDEM from seeking
additional relief against Respondents 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.
8.
Stipulated penalties are payable by check to
the “Environmental Management Special Fund.” Checks shall include the Case
Number 2018-25377-D, of this action and shall be mailed to:
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Office of Legal Counsel |
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Indianapolis Department of
Environmental Management |
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IGCN, Room N1307 |
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100 North Senate Avenue |
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Indianapolis, IN 46204 |
9.
This Agreed Order shall apply to and be binding
upon Respondents, their 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 Respondents shall in any way alter their
status or responsibilities under this Agreed Order.
10.
In the event that the monies due to IDEM
pursuant to this Agreed Order are not paid on or before their Due Date,
Respondents 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 Respondents pay 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.
11.
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.
12.
Respondents shall provide a copy of this Agreed
Order, if in force, to any subsequent owners or successors before ownership
rights are transferred. Respondents shall ensure that all contractors, firms
and other persons performing work under this Agreed Order comply with the terms
of this Agreed Order.
13.
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 Respondents
pursuant to this Agreed Order, shall not in any way relieve Respondents of
their obligation to comply with the requirements of their applicable permits or
any applicable Federal or State law or regulation.
14.
Complainant does not, by his approval of this
Agreed Order, warrant or aver in any manner that Respondents’ 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 Respondents’ efforts
to comply with this Agreed Order.
15.
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.
16.
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 Respondents may
incur as a result of such communications with the US EPA or any other agency or
entity.
17.
This Agreed Order shall remain in effect until
Respondents have complied with the terms and conditions of this Agreed Order
and IDEM issues a Resolution of Case (close out) letter to Respondents.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.
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TECHNICAL RECOMMENDATION: |
RESPONDENT: |
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Department of Environmental Management |
Wilbur Sharp and Betty Sharp d.b.a Colonial Mobile Court |
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By:__________________________ |
By:________________________ |
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Samantha K. Groce, Chief |
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Water Enforcement Section |
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Surface
Water, Operations & |
Printed:_____________________ |
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Enforcement
Branch |
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Office of
Water Quality |
Title:_______________________ |
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Date:________________________ |
Date:_______________________ |
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COUNSEL FOR RESPONDENT: |
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By:________________________ |
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Date:______________________ |
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APPROVED AND ADOPTED BY THE INDIANA
DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT THIS ___________ DAY OF
________________, 20___. |
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For The Commissioner: |
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Signed
on March 22, 2019 |
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Martha Clark Mettler |
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Assistant Commissioner |
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Office of Water Quality |