STATE OF INDIANA

COUNTY OF MARION

)
)
)


SS:

BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v

JAMES McCOLLISTER, OWNER,
CHECKERZ BAR,

Respondent.

)
)
)
)
)
)
)
)
)
)
)






CASE NO. 2003-13203-W

 

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.

 

I. FINDINGS OF FACT

 

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

 

2.                  The Respondent is James McCollister, (the “Respondent”), who owns and operates a public water supply (“PWS”) system at Checkerz Bar, located at 1706 W. Till Road, Fort Wayne, Allen County, Indiana.  This is a transient noncommunity PWS system, PWSID Number IN2020951, that serves 205 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, on December 8, 2003, IDEM issued a Notice of Violation via Certified Mail #: 7002 0510 0004 0443 6015 to:

James McCollister, Owner
Checkerz Bar
1706 West Till Road
Fort Wayne, Indiana 46818

 

5.                  The Notice of Violation identified the following violations:

 

A.                 Pursuant to 327 Indiana Administrative Code (“IAC”) 8-2-8(c), a noncommunity water supply system which serves no more than 1000 persons must collect at least one routine total coliform sample each calendar quarter.

IDEM records indicate that the Respondent failed to collect at least one routine total coliform sample from the Checkerz Bar PWS system during the 3rd and 4th quarters of 2002, and the 1st quarter of 2003, in violation of 327 IAC 8-2-8(c).

 

B.                 Pursuant to the public notice provisions of 327 IAC 8-2.1 (327 IAC 8-2-15(d) for violations occurring on or before November 19, 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.

IDEM records indicate that the Respondent failed to notify persons served by the Checkerz Bar PWS system of the failure to perform the total coliform monitoring required pursuant to 327 IAC 8-2-8(c) during the 3rd and 4th quarters of 2002, and the 1st quarter of 2003, in violation of the public notice provisions of 327 IAC 8-2.1.

 

6.                  On October 31, 2002, January 31, 2003, March 27, 2003, and May 9, 2003, IDEM issued reminder letters to the Respondent for Checkerz Bar at 1706 West Till Road, Fort Wayne, Indiana 46818.  The reminder letters addressed total coliform monitoring violations that occurred during the 3rd and 4th quarters of 2002, and the 1st quarter of 2003.  Furthermore, the reminder letters requested that the recipient provide a written response to IDEM within 10 days of its receipt.  IDEM received no response to the reminder letters.

 

7.                  On March 11, 2004, IDEM received the Respondent's laboratory results for routine total coliform monitoring required for the 3rd quarter of 2002 and the 1st quarter of 2003.

 

8.                  On November 17, 2004, the Respondent submitted a copy of the public notice for persons served by the Checkerz Bar PWS, for failure to meet the 4th quarter 2002 monitoring and reporting requirements for routine coliform testing during the period of October through December 2002.  The public notice was dated on February 25, 2003.  The Respondent failed to timely submit the 4th quarter 2002 public notice to IDEM, in violation of the public notice provisions of 327 IAC 8-2.1.

 

9.                  On December 15, 2004, the Respondent met with a representative of IDEM to discuss this enforcement action.

 

10.             On December 17, 2004, the Respondent submitted a copy of the public notice for persons served by the Checkerz Bar PWS, for failure to meet the routine coliform testing schedule for the 3rd and 4th quarters, 2002, and the 1st quarter, 2003, to IDEM.  The public notice was dated on December 17, 2004.  The Respondent failed to timely submit the 3rd and 4th quarters, 2002, and the 1st quarter, 2003 public notice to IDEM, in violation of the public notice provisions of 327 IAC 8-2.1.

 

11.             In recognition of the settlement reached, the 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.

 

2.                  The Respondent shall comply with all applicable provisions of the IAC, including, but not limited to, 327 IAC 8-2-8(c), and the public notice provisions of 327 IAC 8-2.1.

 

3.                  For purposes of this Agreed Order, Respondent shall monitor for total coliform in its PWS system for four consecutive quarters, beginning within 30 days after the Effective Date of this Agreed Order.

 

4.                  Within the earlier of either 10 days after the Respondent receives any total coliform monitoring results or 10 days after the end of the applicable total coliform monitoring period, the Respondent shall submit said monitoring results for the Checkerz Bar to IDEM’s Office of Water Quality (“OWQ”) Drinking Water Branch (“DWB”), pursuant to 327 IAC 8-2-13(a).  For the added purpose of complying with this Agreed Order, Respondent also shall, for the first year subsequent to this Order's Effective Date, send to IDEM’s Office of Enforcement (“OE”) a copy of these monitoring results.

 

5.                  Within 30 days after the Effective Date of this Agreed Order, the Respondent shall provide public notification for the violations listed in Section I, Order Paragraph 5(b) by following these steps:

 

(a)               Telephone the DWB at (317) 308-3286 [or toll free (800) 451-6027, extension 308-3286] for direction about the applicable public notice requirements of 327 IAC 8-2.1.  This direction will address public notice type, form, manner, frequency, and issuance deadline requirements, tailored to the specific violation circumstance and PWS.

(b)               Provide the required public notice commensurate with the type, form, manner, frequency, and issuing deadline direction identified in Step 5(a).

 

6.                  In the event that the Respondent fails to complete any PWS monitoring required by this Agreed Order, the Respondent shall give public notice of said failure by following these steps:

 

(a)               Within one business day following the monitoring failure, the Respondent should telephone DWB at (317) 308-3286 [or toll-free (800) 451-6027, extension 308-3286] for immediate direction about the applicable public notice requirements of 327 IAC 8-2.1.  This direction will address public notice type, form, manner, frequency and issuance deadline requirements, tailored to the specific violation circumstance and PWS.

(b)               Provide the required public notice commensurate with the type, form, manner, frequency, and issuance deadline direction identified in Step 6(a).

 

7.                  Pursuant to 327 IAC 8-2-13(d), the Respondent, within 10 days of issuing public notifications under 327 IAC 8-2.1, shall submit to the Commissioner through IDEM’s OWQ 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, the Respondent 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 representative notices.

 

8.                  All submittals required by this Agreed Order to be submitted to OWQ’s DWB, unless notified otherwise in writing, shall be sent to:

 

Joseph Stapinski, Compliance Section
Drinking Water Branch, OWQ – Mail Code 65-40
Indiana Department of Environmental Management
100 N. Senate Avenue
Indianapolis, Indiana 46204-2251

 

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

 

Aletha Lenahan, Environmental Manager
Office of Enforcement – Mail Code 60-02
Indiana Department of Environmental Management
100 North Senate Avenue
Indianapolis, Indiana 46204-2251

 

10.             The Respondent is assessed a civil penalty of Four Hundred Forty Dollars ($440).  Said penalty amount shall be paid in six (6) monthly payments.  The first payment of Sixty Five Dollars ($65) is due and payable to the Environmental Management Special Fund within 30 days of the Effective Date of this Agreed Order.  The remaining five (5) equal payments of Seventy Five Dollars ($75) shall be made by the 10th day of each of the following five (5) months.  Interest shall accrue on any amount past due under this schedule or remaining after the five (5)-month period at a rate established by IC 24-4.6-1-101.

 

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

 

Paragraph

Violation

Penalty

3

Failure to monitor for total coliform for four consecutive quarters, beginning within 30 days after the Effective Date.

$500 per sample missed.

4

Failure to report monitoring results to IDEM within the earlier of 10 days after receiving the total coliform monitoring results, or 10 days after the end of the applicable total coliform monitoring period.

$100 per each week, or part thereof, past the applicable 10-day deadline, for failure to report.

5

Failure to provide public notification for the monitoring violations listed in Section I, Paragraph 5(b).

$250 per each week, or part thereof, past the 30-day deadline.

6

Failure to provide public notification for monitoring violations of this Agreed Order.

$250 per each week, or part thereof, past the DWB direction deadline.

7

Failure to send to IDEM within 10 days a representative copy of each public notification and its signed and accompanying Certification Form for Public Notice.

$100 per each week, or part thereof, past the 10-day deadline.

 

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

 

13.             Civil and stipulated penalties are payable by check to the Environmental Management Special Fund.  Checks shall include the Case Number 2003-13203-W, of this action and shall be mailed to:

 

Indiana Department of Environmental Management
Cashiers Office-Mail Code 50 - 10C
100 N. Senate Avenue
Indianapolis, Indiana 46204-2251

 

14.             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.

 

15.             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.

 

16.             The provisions of this Agreed Order do not in any way relieve the Respondent of its obligation to comply with applicable Federal or State law or regulation.

 

17.             The Respondent shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights are transferred.  The Respondent shall ensure that all contractors, firms and other persons performing work under this Agreed Order comply with the terms of this Agreed Order and all applicable rule and statues.

 

18.             This Agreed Order shall remain in effect until the Respondent has complied with the terms and conditions of Order Paragraphs 3 through 13 and until IDEM issues a Close-Out letter to the Respondent.

 

 

The remainder of this page was intentionally left blank.

 

 

TECHNICAL RECOMMENDATION:

 

RESPONDENT:

Department of Environmental Management

 

James McCollister

 

 

 

By:

 

 

By:

 

 

Mark W. Stanifer

 

Printed:

 

 

Section Chief, Water Section

 

Title:

Owner and Operator

 

Office of Enforcement

 

 

Checkerz Bar, Public Water Supply

 

 

 

 

 

Date:

 

 

Date:

 

 

 

 

COUNSEL FOR COMPLAINANT:

 

COUNSEL FOR RESPONDENT:

Department of Environmental Management

 

 

 

 

 

By:

 

 

By:

 

 

Joseph H. Merrick, Attorney

 

 

 

 

Office of Legal Counsel

 

 

 

Date:

 

 

Date:

 

 

 

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

 

DAY OF

 

, 200

 

.

 

 

For The Commissioner:

 

 

 

Signed on June 3, 2005

 

Matthew T. Klein

 

Assistant Commissioner for

 

Compliance and Enforcement