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STATE OF INDIANA |
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BEFORE THE INDIANA DEPARTMENT |
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COMMISSIONER OF THE DEPARTMENT Complainant, v. NJ
PROPERTIES 2 LLC, Respondent. |
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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.
NJ
Properties 2 LLC (Respondent) owns and/or operates a community public water system (PWS)
with PWSID No. IN5291006, serving 25 persons at Clearview Resort. The PWS is located at 5070 E. Indiana Beach Road Monticello, White
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 via Certified Mail to:
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Dave Jordan |
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NJ Properties 2 LLC |
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1200 S. 6th St. |
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Monticello, IN 47960 |
6.
Pursuant to 327 Indiana
Administrative Code (IAC) 8-2, each CWS shall comply with all provisions of
this rule.
7.
Pursuant to 327 IAC 8-2.1-2(a), an existing CWS is
required to submit a Consumer Confidence Report (CCR) by July 1 annually.
IDEM records
indicate Respondent failed to submit a CCR for 2016 and 2018 to its customers, in violation of 327 IAC
8-2.1-2(a).
Respondent
submitted the CCR to IDEM on May 1, 2019.
8.
Pursuant to 327 IAC 8-2.1-5(c), all CWSs are required to
submit a 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 2016, 2017, and
2018 to IDEM, in violation of 327 IAC 8-2.1-5(c).
Respondent
submitted the CCR Certification to IDEM on May 1, 2019.
9.
Pursuant to 327 IAC 8-2-37(c)(2),
all CWSs shall record five (5) samples for Lead and Copper in a six (6) period.
IDEM records
indicate Respondent failed to monitor and report for lead and copper during the
months of June, July, August, and September 2017, in violation of 327 IAC
8-2-37(c)(2).
Respondent
submitted the requisite samples for 2018.
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 2017, in violation of 327 IAC 8-2-44(d)
11. Pursuant to
327 IAC 8-2-4.1(f), all CWSs shall monitor for nitrate to determine compliance
with the maximum contaminant level (MCL) for nitrate.
IDEM records
indicate that Respondent failed to monitor for nitrate during the 2017, in violation
of 327 IAC 8-2-4.1(f).
12. Pursuant to
327 IAC 8-2-4.1, a CWS shall monitor for inorganic chemicals (IOCs) to determine
compliance with the MCL.
IDEM records
indicate that Respondent failed to monitor IOCs in 2017, in violation of 327
IAC 8-2-4.1.
13. Pursuant to
327 IAC 8-2-5.5, a CWS shall monitor for the volatile organic compounds (VOCs)
testing in order to determine compliance with the MCL.
IDEM records
indicate that Respondent failed to monitor and report for VOCs in 2017, in
violation of 327 IAC 8-2-5.5.
14. Pursuant to
327 IAC 8-2.1-7, the owner or operator of a CWS which fails to perform
monitoring is required to notify persons served by the CWS. 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 and the
Commissioner of the failure to perform Lead and Copper monitoring during the
months of June, July, August, and September 2017, and failure to monitor
nitrate, IOC, and VOC, during 2017, each in violation of 327 IAC 8-2.1-7.
15.
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 6 through 14
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, for purposes of this Order, monitor nitrate at the
entry point to the distribution system that is representative of each well
after treatment.
It is the responsibility of Respondent to continue sampling
nitrate annually, pursuant to 327 IAC 8-2-4.1(f).
3.
Within 10 days of becoming aware of
a nitrate MCL exceedance, Respondent shall submit notification to IDEM of the
MCL exceedance. Respondent shall complete all requirements to resolve the MCLs
as instructed by IDEM’s notification(s).
4.
Within 30 days of the Effective
Date, Respondent shall, for the purposes of this Order, monitor required IOCs
at the entry point to the distribution system that is representative of each
well after treatment. This will count as the required samples for the 2017 IOCs
sample.
It is the responsibility of Respondent to continue sampling
IOC annually, pursuant to 327 IAC 8-2-4.1.
5.
In the event any sample result
exceeds the MCL for IOCs, Respondent shall submit notification to IDEM within
10 days of becoming aware of the exceedance. Respondent shall complete all
requirements to resolve the violations(s), in accordance with IDEM’s notifications(s).
6.
Within 30 days of the Effective
Date, Respondent shall, of the purposes of this Order, monitor VOCs, at the
entry point to the distribution system that is representative of each well
after treatment.
It is the responsibility of Respondent to continue
monitoring for VOCs, pursuant to 327 IAC 8-2-5.5.
7.
Within 10 days of becoming aware of
a VOCs MCL exceedance, Respondent shall submit notification to IDEM of the MCL
exceedance. Respondent shall complete all requirements to resolve the MCLs as
instructed by IDEM’s notification(s).
8.
Within 30 days of the Effective
Date, Respondent shall provide public notice, for the past monitoring
violations listed in Paragraph 13 of the Findings of Facts above, by following
these steps.
9.
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 327
IAC 8-2.1-7(d)(4).
10.
All submittals required by this
Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall
be sent to:
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Samantha Groce,
Enforcement |
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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 |
11.
Respondent is assessed and agrees to
pay a civil penalty of One Thousand Six Hundred Seventy-five Dollars ($1,675).
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.”
12.
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:
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Paragraph: |
Violation: |
Stipulated Penalty: |
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2 |
Failure to monitor and report
required sample(s). |
$350 per sample missed. |
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3 |
Failure to comply with any part of
this paragraph after a MCL exceedance. |
$400 per week for violation of any
part of this paragraph. |
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4 |
Failure to monitor and report
required sample(s). |
$350 per sample missed. |
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5 |
Failure to comply with any part of
this paragraph after a MCL exceedance. |
$400 per week for violation of any
part of this paragraph. |
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6 |
Failure to monitor and report
required sample(s). |
$350 per sample missed. |
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7 |
Failure to comply with any part of
this paragraph after a MCL exceedance. |
$400 per week for violation of any
part of this paragraph. |
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8 |
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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9 |
If applicable, failure to provide
public notice. |
$250 per week, or part thereof. |
13.
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.
14.
Civil and stipulated penalties are
payable by check to the “Environmental Management Special Fund.” Checks shall
include the Case Number 2018-25462-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 |
15.
This Agreed Order shall apply to and
be binding upon Respondent, 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 Respondent shall in any way
alter their status or responsibilities under this Agreed Order.
16.
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.
17.
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.
18.
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.
19.
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 their
obligation to comply with the requirements of their applicable permits or any
applicable Federal or State law or regulation.
20.
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.
21.
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.
22.
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.
23.
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.
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TECHNICAL RECOMMENDATION: |
RESPONDENT: |
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Department of Environmental
Management |
NJ
Properties 2, LLC |
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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 May 17, 2019 |
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Martha Clark Mettler |
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Assistant Commissioner |
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Office of Water Quality |