STATE OF INDIANA

COUNTY OF MARION

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SS:

BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v.

IMH Realty Corp. dba Indiana Masonic Home,

Respondent.

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Case No. 2020- 27070-D

 

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.          IMH Realty Corp. dba Indiana Masonic Home (Respondent) owns and/or operates a community public water system (PWS) with PWSID No. IN5241010, serving 579 persons. The PWS is located at 690 State Street, Franklin, Johnson County, Indiana (the Site).

 

3.          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.

 

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:

 

Charles Spencer

IMH Realty Corporation

690 S. State Street

Franklin, IN, 46131

 

6.          327 Indiana Administrative Code (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 327 IAC 8-2.5-14(a)(3), a PWS using ground water and serving less than 500 persons, shall monitor TTHM and HAA5 at no fewer than one (1) location per year.

 

Pursuant to 327 IAC 8-2.5-20, a PWS shall report TTHM and HAA5 monitoring result to IDEM within 10 days after the end of any quarter in which monitoring is required.

 

IDEM records indicate that Respondent failed to monitor TTHM and HAA5 samples during 2018 and 2019 and failed to report monitoring results to IDEM, in violation of 327 IAC 8-2.5-14(a)(3), and 327 IAC 8-2.5-20.

 

8.          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 10 lead and copper samples during June through September annually. IDEM records indicate Respondent failed to monitor and report for lead and copper during the months of June through September 2018 and 2019, in violation of 327 IAC 8-2-37(c)(1).

 

9.          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 persons served by the PWS of the failure to monitor TTHM and HAA5 samples during 2018 and 2019 and failed to report monitoring results to IDEM, in violation of 327 IAC 8-2.1-7; and

(b)       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 and 2019, each in violation of 327 IAC 8-2.1-7.

 

10.      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 7 through 9 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 monitor for TTHM and HAA5 at the locations and dates specified in Respondent’s CMP, these will count as the make-up sample(s) for the missed required TTHM and HAA5 samples for 2020.

 

It is the responsibility of Respondent to continue sampling TTHM and HAA5, as specified in the CMP, after completion of the sampling required by this paragraph.

 

3.          Within 10 days of becoming aware of a TTHM and HAA5 MCL exceedance, Respondent shall submit notification to IDEM of the MCL exceedance. Respondent shall complete all requirements to resolve the MCL exceedances as instructed by IDEM’s notification(s).

 

4.          Respondent shall collect lead and copper samples during the next monitoring period, January through June 2021 required pursuant to 327 IAC 8-2-37.

 

5.          Within 30 days of the Effective Date, Respondent shall provide public notice, for the past TTHM, HAA5, lead, and copper monitoring and/or reporting violations listed in Paragraph 9 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 TTHM, HAA5, lead, and copper monitoring violations accompany this Agreed Order.

 

6.          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)

 

7.          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 8.

 

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

 

Delaney Isaacs, Enforcement Case Manager

Office of Water Quality – IGCN 1255

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

9.          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 monitor TTHM and HAA5 at the locations and dates specified in the CMP.

$350 per missed sample.

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.

4

Failure to collect lead and copper samples.

$350 per sample missed.

5

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

$300 per week, or part thereof, past the 30-day deadline.

6

If applicable, failure to provide public notice.

$300 per week, or part thereof.

7

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

$100 per week, or part thereof.

 

10.       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.

 

11.       Civil and stipulated penalties are payable by check to the “Environmental Management Special Fund.” Checks shall include the Case Number 2020- 27070-D, of this action and shall be mailed to:

 

Indiana Department of Environmental Management

Accounts Receivable

IGCN, Room 1340

100 North Senate Avenue

Indianapolis, IN 46204

 

12.       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.

 

13.       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.

 

14.       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.

 

15.       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.

 

16.       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.

 

17.       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.

 

18.       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.

 

19.       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.

 

20.       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

IMH Realty Corp. dba Indiana Masonic Home

 

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 November 19, 2020

 

Martha Clark Mettler

 

Assistant Commissioner

 

Office of Water Quality