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. 2002-11173-W
  )  
MR. PHILLIP S. AND MS. REBECCA L. MAZUR )

)

  
  )  
  Respondents. )  

 

AGREED ORDER




The Complainant and the 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.
 
 

I. FINDINGS OF FACT

1. The Complainant is the Commissioner (hereinafter referred to as "Complainant") of the Indiana Department of Environmental Management, a department of the State of Indiana created by IC 13-13-1-1.

2. The Respondents are Mr. Phillip S. and Ms. Rebecca L. Mazur, ("Respondents"), who jointly and severally own and operate a public water supply ("PWS") system located at Mill Creek Inn, 6048 West U.S. 40 in Stilesville, Hendricks County, Indiana. This is a transient noncommunity PWS system, PWSID Number 2320122, that serves 100 people.

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

4. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation via Certified Mail to:
 
Mr. Phillip S. and Ms. Rebecca L. Mazur, 
Owners and Operators
Mill Creek Inn
P. O. Box 200
Stilesville, Indiana 46180-0200
 
    1. The Notice of Violation identified the following violations:
    1. Pursuant to 327 IAC 8-2-4.1(f), all public water supply systems shall monitor to determine compliance with the maximum contaminant level ("MCL") for nitrate.
IDEM records indicate that the Respondents failed to fulfill the annual monitoring requirement for nitrate for the Mill Creek Inn PWS systemduring 2001, in violation of 327 IAC 8-2-4.1(f).
    1. Pursuant to 327 IAC 8-2-8(c), a noncommunity water supply system which serves not more than 1,000 persons must collect at least one routine total coliform sample each calendar quarter.

      2.  

       

      IDEM records indicate that the Respondents failed to collect at least one routine total coliform sample from the Mill Creek Inn PWS system during the first, second, and third quarters of 2001, the first, third, and fourth quarters of 2002, and the first quarter of 2003, in violation of 327 IAC 8-2-8(c).

    2. Pursuant to 327 IAC 8-2-8.1(a), if a routine sample is total coliform-positive, the PWS system must collect a set of repeat samples within 24 hours of being notified by the laboratory or commissioner of the positive result. Furthermore, a system which collects one routine sample per month or fewer must collect no fewer than four repeat samples for each total coliform-positive sample found.

      3.  

       

      IDEM records indicate that the Respondents failed to collect at least four repeat samples within the month of June 2002, after collecting a total coliform-positive routine sample on June 26, 2002, in violation of 327 IAC 8-2-8.1(a).
       

    3. Pursuant to 327 IAC 8-2-8.1(e), if a PWS system collecting fewer than five routine samples per month has one or more total coliform-positive samples, and the commissioner does not invalidate the samples under section 8(f) of this rule, it must collect at least five routine samples during the next month the system provides water to the public.

      4.  

       

      IDEM records indicate that the Respondents failed to collect at least five routine samples during the next month of July 2002, after collecting a total coliform-positive routine sample on June 26, 2002, in violation of 327 IAC 8-2-8.1(e).

    4. Pursuant to 327 IAC 8-2.1-7 and 327 IAC 8-2.1-9 (Tier 2 Notice), effective on and after November 20, 2001, the owner or operator of a PWS system which fails to perform monitoring required pursuant to 327 IAC 8-2-8(c) is required to notify persons served by the PWS system, in the manner provided for in these rules, of such failure. The Commissioner has determined, taking into account health impacts, that Tier 2 Notice applies pursuant to 327 IAC 8.2.1-9(a)(2).

      5.  

       

      IDEM records indicate that the Respondents failed to notify persons served by the Mill Creek Inn PWS system of the failure to perform total coliform monitoring during the third and fourth quarters of 2002, and the first quarter of 2003, in violation of 327 IAC 8-2.1-7 and 327 IAC 8-2.1-9.
       
       

    5. Pursuant to 327 IAC 8-2.1-8 (Tier 1 Notice), the owner or operator of a PWS system, which experiences exceedance in total coliform bacteria maximum contaminant level (MCL) and fails to perform repeat bacteriological samples to rule-out possible exceedance in fecal coliform MCL or E. coli bacteria MCL (where the standard is no more than one sample may be positive), is required to notify persons served by the PWS system, in the manner provided for in this rule, of such failure.          IDEM records indicate that the Respondents experienced a total    coliform-positive routine distribution sample on June 26, 2002, and failed to notify persons served the Mill Creek Inn PWS system, of their failure to collect the required repeat samples, in violation of 327 IAC 8-2.1-8.
6. On March 30, 2001, IDEM issued a new-system-start up letter, which addressed ownership change effective January 11, 2001, and monitoring requirements applicable to the Mill Creek Inn PWS system.

7. On June 24, 2002, the Mill Creek Inn PWS system provided public notification of its failure to monitor for nitrate in 2001, and total coliform in the first, second, and third quarters of 2001, and in the first quarter of 2002.

8. In recognition of the settlement reached, the 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 approved by the Complainant or her delegate, and has been received by the Respondents. This Agreed Order shall have no force or effect until the Effective Date.
2. The Respondents shall comply with all applicable provisions of the Indiana Administrative Code (IAC), including, but not limited to, 327 IAC 8-2-4.1(f), 327 IAC 8-2-8(c), 327 IAC 8-2.1-7, 327 IAC 8-2.1-8, and 327 IAC 8-2.1-9.
    1. Respondents shall monitor nitrate at the entry point into the PWS system, within 30 days after the Effective Date of this Agreed Order, pursuant to 327 IAC 8-2-4.1(f).
    2. For purposes of this Agreed Order, Respondents shall monitor for total coliform in their PWS system for four consecutive quarters, beginning within 30 days after the Effective Date of this Agreed Order.
    3. Within the earlier of either ten days after the Respondents receive any nitrate, or total coliform monitoring results or ten days after the end of the applicable nitrate or total coliform monitoring period, the Respondents shall submit said monitoring results for the Mill Creek Inn PWS system to IDEM's OWQ's Drinking Water Branch (DWB), pursuant to 327 IAC 8-2-13(a). For the added purpose of complying with this Agreed Order, Respondents also shall, for the first year subsequent to this Order's Effective Date, send to IDEM's OE a second copy of these monitoring results.
    4. Within 30 days after the Effective Date of this Agreed Order, the Respondents shall provide public notification, using the draft Tier 2 and Tier 1 forms attached to this Agreed Order, for the past violations listed in Section I, Paragraphs 5.E and 5.F, by hand delivery or posting in a conspicuous location in the area served by the Mill Creek Inn PWS system.
    5. In the event of a total coliform-positive routine monitor sample occurrence, the Respondents shall collect four repeat samples within the same month as the said occurrence, pursuant to 327 IAC 8-2-8.1(a), and the five routine samples within the month that follows said occurrence, pursuant to 327 IAC 8-2-8.1(e).
    6. In the event that the Respondents fail to complete any routine monitoring required by this Agreed Order, the Respondents shall, within 30 days of the failure, provide Tier 2 public notification of said failure, pursuant to 327 IAC 8-2.1-7 and 327 IAC 8.2.1-9. In the event that the Respondents fail to complete any repeat monitoring required by this Agreed Order, the Respondents shall, within 24 hours of the failure, provide Tier 1 public notification of said failure, pursuant to 327 IAC 8-2.1-7 and 327 IAC 8-2.1-8. In both instances, public notification shall be by hand delivery or posting in a conspicuous location in the area served by the Mill Creek Inn's PWS system.
    7. Pursuant to 327 IAC 8-2-13(d), the Respondents, within ten days of issuing public notifications under rules 327 IAC 8-2.1-7 and 327 IAC 8-2.1-9, or 327 IAC 8-2.1-7 and 327 IAC 8-2.1-8, shall submit to the commissioner (IDEM's OWQ's DWB) both a signed certification of compliance to the rules and a representative copy of each notice covered by this certification. For the added explicit purpose of complying with this Agreed Order, Respondents also shall, for the first year subsequent to this Order's Effective Date, send to IDEM's OE a second copy of foregoing issued certifications and their notices-covered.
10. All submittals required by this Agreed Order to be submitted to OWQ's DWB, unless notified otherwise in writing, shall be sent to:

Drinking Water Branch
Indiana Department of Environmental Management
P.O. Box 7148
Indianapolis, IN 46207-7148.

11. All submittals required by this Agreed Order to be submitted to OE, unless notified otherwise in writing, shall be sent to:

Richard Deitsch, Office of Enforcement
Indiana Department of Environmental Management
100 North Senate Avenue
P.O. Box 6015
Indianapolis, IN 46206-6015.

12. In the event the following terms and conditions of this section are violated, the Complainant may assess and the Respondents shall pay a stipulated penalty in the following amounts:
 

 Violation                                                                Penalty

Failure to comply with Paragraph 3                     $500 for the failure of the Respondents to monitor for
                                                                            nitrate and within stated deadline.

Failure to comply with Paragraph 4                     $500 for the failure of the Respondents to monitor for
                                                                            total coliform within 30-days of the Effective
                                                                            Date and its subsequent calendar quarters.

Failure to comply with Paragraph 5                     $100 per each week, or part thereof, past the
                                                                            applicable 10-day deadline that the Respondents
                                                                            fail to submit a copy of the results of any monitoring
                                                                            required by this Agreed Order to IDEM.

Failure to comply with Paragraph 6                     $250 per each week, or part thereof, past the 30-day
                                                                            deadline that the Respondents fail to provide
                                                                            public notification for the violations listed in
                                                                            Section I, Paragraphs 5.E and 5.F.

Failure to comply with Paragraph 7                     $500 for the failure of the Respondents to collect,
                                                                            within specified period, any required repeat and
                                                                            routine samples necessitated in the event of
                                                                            experiencing a total coliform-positive routine
                                                                            monitor sample.

Failure to comply with Paragraph 8                     $250 per each week, or part thereof, past the 30 days
                                                                        deadline (Tier 2), or past the 24 hour deadline
                                                                        (Tier 1) that the Respondents fail to provide public
                                                                        notification for any violation of the monitoring
                                                                        requirements of this Agreed Order.

Failure to comply with Paragraph 9                     $100 per each week, or part thereof, past the ten-day
                                                                        deadline that the Respondents fail to submit to
                                                                        IDEM a copy of any public notification and its
                                                                        accompanying certification, required by this
                                                                        Agreed Order.

  13. Stipulated penalties shall be due and payable within 30 days after the Respondents receive 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 Respondents 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 the Respondents' violation of this Agreed Order, or Indiana law, including but not limited to civil penalties pursuant to IC 13-30-4.

14. 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

15. This Agreed Order shall apply to and be binding upon the Respondents, their successors, and assigns. The Respondents' 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 Respondents shall in any way alter its status or responsibilities under this Agreed Order.

16. 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.

17. The Respondents shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights are transferred. The Respondents shall ensure that all contractors, firms and other persons performing work under this Agreed Order comply with the terms of this Agreed Order.
    1. This Agreed Order shall remain in effect until the Respondents comply with the terms and conditions of Paragraphs 2 through 14 and until IDEM issues a Close-Out letter to the Respondents.
19. The provisions of this Agreed Order do not in any way relieve the Respondents of their obligation to comply with applicable Federal or State law or regulation. TECHNICAL RECOMMENDATION: RESPONDENTS:

Department of Environmental Management                         Mr. Phillip S. and Ms. Rebecca L. Mazur
By: ______________________________                         By: ______________________________

Mark W. Stanifer
Section Chief, Water Section                                             Printed: Phillip S. Mazur
Office of Enforcement                                                        Title: Owner and Operator

Date: _______________________________                 Date: ______________________________

                                                                                        By: _____________________________

                                                                                        Printed: Rebecca L. Mazur

                                                                                        Title: Owner and Operator

                                                                                        Date: _____________________________
 

COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENTS:

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 ____________________________, 2003.
 
 

For The Commissioner: Original Signed January 30, 2004 ___________________________

Felicia A. Robinson

Deputy Commissioner for Legal Affairs