STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT

) SS: OF ENVIRONMENTAL MANAGEMENT

COUNTY OF MARION )

COMMISSIONER OF THE DEPARTMENT )

OF ENVIRONMENTAL MANAGEMENT, )

)

Complainant, )

)

v. ) Case No. 2001-10722-W

)

PROPORTION-AIR, INC., )

)

Respondent. )

 

 

AGREED ORDER

The Complainant and the 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 IC 13-30-3-3, entry into the terms of this Agreed Order does not constitute an admission of any violation contained herein. The Respondent's entry into this Agreed Order shall not constitute a waiver of any defense, legal or equitable, which the Respondent may have in any future administrative or judicial proceeding.

 

I. FINDINGS OF FACT

1. Complainant is the Commissioner (AComplainant@) of the Indiana Department of Environmental Management, a department of the State of Indiana created by IC 13-13-1-1.

2. Respondent is Proportion-Air, Inc. (ARespondent@), which is a nontransient, noncommunity public water supply system operating under PWSID# 2300844, located at 5250 W. 234, in McCordsville, Hancock County, Indiana, which serves 72 persons.

3. The Indiana Department of Environmental Management (AIDEM@) has jurisdiction over the parties and the subject matter of this action.

 

4. Pursuant to IC 13-30-3-3, on November 27, 2001, IDEM issued a Notice of Violation via Certified Mail to:

Daniel E. Cook

President and Registered Agent

Proportion-Air, Inc.

5250 W. 234

McCordsville, Indiana 46055

5. A records review was conducted on October 26, 2001 by representatives of IDEM. The following violations were in existence or observed at the time of this records review:
    1. Pursuant to 327 8-2-7(a)(2), the microbiological maximum contaminant level (MCL) applies to all public water systems and is based on the presence or absence of total coliform in a sample, rather than coliform density. For a system which collects fewer than forty samples per month, if no more than one sample collected during a month is coliform-positive, the system is in compliance with the MCL for total coliforms. Proportion-Air, Inc. collected one distribution sample on October 12, 2000, three repeat samples on October 19, 2000, four distribution samples on January 30, 2001, four repeat samples on February 26, 2001, one distribution sample on September 19, 2001 and five repeat samples on September 27, 2001 which were total coliform-positive, in violation of 327 IAC 8-2-7(a)(2).
    2. Pursuant to 327 IAC 8-2-8.1(e), if a public water supply system (PWS) which is normally required to collect less than five routine total coliform samples each month has one or more total coliform-positive samples, it must collect at least five routine total coliform samples during the next month after the collection of a routine total coliform-positive sample. Proportion-Air, Inc. failed to collect at least five routine total coliform samples during November 2000 after collecting a routine total coliform-positive sample during October 2000 and during February 2001, after collecting four routine total coliform-positive samples during January 2001, in violation of 327 IAC 8-2-8.1(e).
    3. Pursuant to 327 IAC 8-2-13(a), the supplier of water shall report to the commissioner the results of any test measurement or analysis required by this rule within:

1. the first ten days following the month in which the result is received; or
    1. the first ten days following the end of the required monitoring period as stipulated by the commissioner, whichever is shorter.

Proportion-Air, Inc. failed to report the result of the Second Quarter 2001 (April, May and June) bacteriological analysis to the commissioner within the first ten days following the end of the required monitoring period, in violation of 327 IAC 8-2-13(a).
    1. Subsequent to the issuance of the Notice of Violation on November 27, 2001, the Respondent has directly plumbed one of it drinking water wells into its facility. The Respondent maintains that this will successfully eliminate any future coliform-positive samples.
    2. 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 approved by the Complainant or her delegate, and has been received by the Respondent. This Agreed Order shall have no force or effect until the Effective Date.
    1. Within thirty (30) days of the Effective Date, the Respondent shall hire a certified operator with a minimum classification of DSS, in accordance with the requirements of 327 IAC 8-12 and IC 13-18-11. The Respondent shall retain the services of a certified operator as long as it remains a public water supply system. Within thirty (30) days of the Effective Date, the Respondent shall submit to IDEM copies of the following:
    1. employment agreement with the certified operator;
    2. the operator's certification number; and
    3. a log that the operator shall maintain to document actual time spent at and activities conducted at Respondent's facility.
    1. Within thirty (30) days of the Effective Date, the Respondent shall submit a site sampling plan in conformance with the requirements of 327 IAC 8-2-8.
    2. The Respondent shall demonstrate twelve (12) consecutive months of compliance (Compliance Demonstration) with absent total coliform as specified in 327 IAC 8-2-7 by collecting one sample per month. If Respondent does not have any coliform-positive samples in the twelve consecutive month period, Respondent may resume sampling on a quarterly basis. In the event that Respondent fails to make the Compliance Demonstration, Respondent shall, within sixty days of becoming aware that the Compliance Demonstration cannot be achieved, develop and submit to IDEM for approval, a compliance plan (CP) which identifies the actions that Respondent will take to achieve compliance with total coliform. The CP, if required, shall include an implementation and completion schedule, including specific milestone dates.
    3. The CP required by Paragraph 4 is subject to IDEM approval. If the CP is deemed inadequate by IDEM, a revised plan shall be submitted within fifteen days of receipt of notice from IDEM of the inadequacies thereof. If, after submission of the revised document, IDEM still finds the document to be inadequate, then IDEM will request further modification of the CP as necessary to meet IDEM's requirements. If the subsequently submitted modification of the CP does not meet IDEM's approval, IDEM will suggest specific modifications to be made to the CP and require re-submittal by a specific date. If the IDEM-suggested modifications are not incorporated into the CP by the Respondent (or an alternative plan is not submitted by the Respondent) by the specified date or are not approved by IDEM, the Respondent will be subject to stipulated penalties as described below. The Respondent, upon receipt of written notification from IDEM, shall immediately implement the approved plan and adhere to the milestone dates therein. The approved plan shall be incorporated into the Agreed Order and shall be an enforceable part thereof.
    4. All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:

      5. Christina Sorensen, Enforcement Case Manager

      Office of Enforcement

      Indiana Department of Environmental Management

      100 N. Senate Avenue

      P. O. Box 6015

      Indianapolis, IN 46206-6015

    5. Respondent is assessed a civil penalty of Seven Thousand Seven Hundred Sixty Dollars ($7,760). Said penalty amount shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the Effective Date of this Agreed Order.
    6. In the event the terms and conditions of the following paragraphs are violated, the Complainant may assess and the Respondent shall pay a stipulated penalty in the following amount:

Violation Penalty

Failure to comply with Order paragraph No. 2 $ 500 per week for failure to have a certified operator

$ 100 per week for failure to have a log on site

Failure to comply with Order paragraph No. 3 $ 100 per week for failure to submit site sampling plan

Failure to comply with Order paragraph Nos. 4 & 5 $ 100 per week for failure to submit CP

$ 100 per week for failure to submit a revised CP, if needed

Failure to comply with Order paragraph No. 5 $ 500 per week for failure to meet any milestone date as specified in approved CP

9. Stipulated penalties shall be due and payable within thirty (30) days after Respondent receives written notice that the Complainant has determined a stipulated penalty is due. Assessment and payment of stipulated penalties shall not preclude the Complainant from seeking any additional relief against the Respondent for violation of the Agreed Order. In lieu of any of the stipulated penalties given above, the Complainant may seek any other remedies or sanctions available by virtue of Respondent=s violation of this Agreed Order or Indiana law, including, but not limited to, civil penalties pursuant to IC 13-30-4.

10. Civil and stipulated penalties are payable by check to the Environmental Management Special Fund. Checks shall include the Case Number of this action and shall be mailed to:

Cashier

Indiana Department of Environmental Management

100 N. Senate Avenue

P. O. Box 7060

Indianapolis, IN 46207-7060

    1. In the event that the civil penalty required by Order paragraph 7, is not paid within thirty (30) days of the Effective Date of this Agreed Order, Respondent shall pay interest on the unpaid balance at the rate established by IC 24-4.6-1-101. The interest shall continue to accrue until the civil penalty is paid in full.
    2. This Agreed Order shall apply to and be binding upon the Respondent, its successors and assigns. The Respondent's signatories to this Agreed Order certify that they are fully authorized to execute this document and legally bind the parties they represent. No change in ownership, corporate, or partnership status of the Respondent shall in any way alter its status or responsibilities under this Agreed Order.

13. In the event that any terms of the 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 the Agreed Order did not contain the invalid terms.

14. The 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.

15. This Agreed Order shall remain in effect until Respondent complies with the terms of Order paragraph Nos. 2 through 11 and IDEM issues a close-out letter.

 

 

 

TECHNICAL RECOMMENDATION: RESPONDENT:

Department of Environmental Management

By: _________________________ By: _________________________

Mark W. Stanifer

Chief, [Section] Chief, Water Enforcement Section Printed: ______________________

Office of Enforcement

Title: ________________________

Date: ________________________ Date: ________________________

 

COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:

Department of Environmental Management

By: _________________________ By: ________________________

Office of Legal Counsel

Date: _______________________ Date: ______________________

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _____ DAY OF ____________________, 2002.

 

 

For the Commissioner:

Signed May 28, 2002

Felicia A. Robinson

Deputy Commissioner

for Legal Affairs