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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. Windstar park inc., 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.
Windstar
Park Inc.
(Respondent) owns and/or operates a community
public water system (PWS) with PWSID No. IN5243047, serving 70 persons. The PWS
is located
at 3529 West 100 South, Warsaw, Kosciusko 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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Keith
W. Harris, President |
Jeannette
M. Harris, Registered Agent |
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Windstar
Park Inc. |
Windstar
Park Inc. |
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5315
South County Farm Road |
5315
S. County Farm Rd |
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Claypool,
IN 46510 |
Claypool,
IN 46510 |
5.
A Community Water System (CWS) as defined by
327 Indiana Administrative Code (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.
6.
327 IAC 8-2-2 states that each PWS shall comply
with all provisions of this rule and 327 IAC 8-2.1.
7.
Pursuant
to the Revised Total Coliform Rule at 327 IAC 8-2.4-1, 40 Code of Federal
Regulations (CFR) 141, Subpart Y is incorporated by reference.
8.
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.
IDEM records indicate Respondent failed
to monitor at least one total coliform sample from the PWS during the months of
December 2018 and March 2019, in violation of 40 CFR 141.855(b).
9.
Pursuant
to 327 IAC 8-2-5.1(4), to determine compliance with the maximum contaminant
levels (MCLs) for synthetic organic chemicals (SOCs) for all community water
systems (CWSs), a ground water system shall take a minimum of one sample at
every entry point to the distribution system that is representative of each
well after treatment.
IDEM records indicate Respondent failed
to monitor SOCs in 2018, in violation of 327 IAC 8-2-5.1(4).
10.
Pursuant to 327 IAC 8-2-5.1(7) if an organic
contaminant listed in section 5(a) of this rule is detected as defined by
subdivision (16), in any sample, then the system must monitor at each sampling
point that resulted in a detection.
IDEM records indicated Respondent failed
to monitor for Di(2-ethyhexyl)adipate during October through December 2018, in
violation of 327 IAC 8-2-5.1(7).
11.
Pursuant to 327 IAC 8-2-10.2, to determine
compliance with the MCLs for gross alpha particle activity, radium-226,
radium-228 and uranium for all CWSs, a ground water system shall take a minimum
of one sample at every entry point to the distribution system that is
representative of each well after treatment.
IDEM
records indicate Respondent failed to monitor for gross alpha and radium 228
during April through June 2018, in violation of 327 IAC 8-2-10.2.
12.
Pursuant
to 327 IAC 8-2-37(c)(1), water systems shall collect at least one (1) sample
during each monitoring period specified in subsection (d) from the number of
sites listed in the second column of the table in this subsection (standard monitoring).
Respondent
is required to collect five (5) lead and copper samples during June through
September triennially. IDEM records
indicate Respondent monitored and reported lead and copper during the months of
June through September 2015. IDEM records
indicate Respondent failed to monitor and report lead and copper during the
months of June through September 2018, in violation of 327 IAC 8-2-37(c)(1).
13.
Pursuant
to 327 IAC 8-4.1-11(c), continued tracking of Wellhead Protection Plan (WHPP)
will begin five (5) years after IDEM approval of the Phase II submittal and
will continue in five (5) year cycles as long as the CWS is in operation.
IDEM records indicate that on February
12, 2013, IDEM formally reviewed and approved Respondent’s Phase II WHPP for is
CWS. The records further indicate that
Respondent did not submit a Phase II WHPP 5-Year Update by February 12, 2018,
as indicated in the Phase II approval letter.
To date, IDEM has not received a Phase II WHPP 5-Year Update from
Respondent, in violation of 327 IAC 8-4.1.11(c).
14.
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, 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 Respondent:
a.
failed to notify the public after the failure to monitor SOCs in 2018 and
failed to monitor for Di(2-ethyhexyl)adipate during October through December
2018, in violation of 327 IAC 8-2.1-7;
b. failed to notify persons served
by the PWS of the failure to for gross alpha and radium 228 during April
through June 2018, in violation of 327 IAC 8-2.1-7; and
c. failed to notify persons served by the PWS
of the failure to perform Lead and Copper monitoring during the months of June through September 2018, in violation of
327 IAC 8-2.1-7.
15.
Orders
of the Commissioner are subject to administrative review by the Office of
Environmental Adjudication under IC 4-21.5; however, in recognition of the
settlement reached, Respondent acknowledges notice of this right and 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 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 the purposes of this Order, monitor for gross alpha and
radium 228 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 gross alpha and radium 228, pursuant to 327 IAC
8-2-10.2.
3.
Within 10 days of becoming aware of a gross
alpha or radium 228 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.
Respondent shall, for the purposes of this
Order, monitor for Di(2-ethyhexyl)adipate during the next monitoring period, October
through December 2019.
It is the responsibility of Respondent
to continue monitoring for SOCs and Di(2-ethyhexyl)adipate, pursuant to 327 IAC
8-2-5.1.
5.
Within 10 days of becoming aware of a SOC or
Di(2-ethyhexyl)adipate 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).
6.
Respondent shall, for the purposes of this
Order, monitor for five (5) first draw lead and copper samples within the
distribution system during June through September 2020.
It is the responsibility of Respondent
to continue to monitor for lead and copper, pursuant to 327 IAC 8-2-37.
7.
Within 30 days of receiving the lead and copper
results, Respondent shall deliver the Consumer Notice of Lead Results in
Drinking Water Form (attached) to persons served by the water system.
8.
Within 10 days of issuing the Consumer Notice
of Lead Results in Drinking Water Form to persons served by the water system,
Respondent shall send IDEM a signed Certification Form for Consumer Notice of
Lead Results (attached).
9.
Within 10 days of becoming aware of a lead or
copper Action Level (AL) exceedance, Respondent shall submit notification to
IDEM of the AL exceedance. Respondent
shall complete all requirements to resolve the ALs as instructed by IDEM’s
notification(s).
10.
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).
11.
If
the results of any sample for total coliform required by Order Paragraph 10
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 MCL exceedance.
12.
Within
30 days of the Effective Date, Respondent shall provide notice, for the past
monitoring and/or reporting violations listed in Paragraph 14 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 monitoring violations accompany this Agreed Order.
13.
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).
14.
Within
60 days of the Effective Date, Respondent shall submit to IDEM the material
required by Indiana’s Wellhead Protection Rule, 327 IAC 8-4.1-11, for the Phase
II WHPP 5-Year Update. Respondent shall
develop and submit the Phase II WHPP 5-Year Update materials that contain the
following core elements:
A.
A
completed copy of State Form 53796 (attached).
B.
Documentation
of well pumping rates since Phase II submittal.
Changes in pumping rates and the addition or abandonment of wells may
require an updated Wellhead Protection Area (WHPA) delineation.
C.
An
updated potential contamination sources (PCS) inventory.
D.
Updated
emergency contact information.
E.
Records
of first responder training and/or providing first responders with an updated
PCS inventory.
F.
Any
other updates to the HWPP since Phase II approval.
15. 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 16.
16.
All submittals required by this Agreed Order,
unless Respondent is notified otherwise in writing by IDEM, shall be sent to:
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David
Koehler, 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 |
17.
Respondent is assessed and agrees to pay a
civil penalty of One Thousand, Six Hundred Five Dollars ($1,605). 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.”
18.
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 samples. |
$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 samples. |
$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
collect lead and copper samples. |
$350 per
sample missed. |
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7 |
Failure to
deliver Consumer Notice of Lead Results in Drinking Water form to persons
served. |
$300 per
week, or part thereof. |
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8 |
Failure to
send to IDEM the Certification Form for Consumer Notice of Lead Results |
$300 per
week, or part thereof. |
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9 |
Failure to
comply with any part of this paragraph after an AL exceedance. |
$400 per
week for violation of any part of this paragraph. |
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10 |
Failure to
monitor and report required samples. |
$250 per
violation. |
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11 |
Failure to
comply with any or all of the requirements of this paragraph. |
$300 per
week for violation of any part of this requirement. |
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12 |
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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13 |
If
applicable, failure to provide public notice. |
$250 per
week, or part thereof. |
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14 |
Failure to
submit a Phase II WHPP 5-Year Update to IDEM. |
$200 per
week, or part thereof. |
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15 |
Failure to
submit the “System Basic Information Summary” document in the manner
specified. |
$100 per
week, or part thereof. |
19. 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.
20. Civil and
stipulated penalties are payable by check to the “Environmental Management
Special Fund.” Checks shall include the Case Number 2019-26326-D, of this action and shall be
mailed to:
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Indiana
Department of Environmental Management |
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Accounts
Receivable |
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IGCN,
Room 1340 |
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100
North Senate Avenue |
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Indianapolis,
IN 46204 |
21.
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.
22.
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.
23.
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.
24.
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.
25.
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.
26.
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.
27.
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.
28.
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.
29.
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 |
Windstar Park Inc. |
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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 January 2, 2020 |
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Martha Clark Mettler |
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Assistant Commissioner |
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Office of Water Quality |