STATE OF
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BEFORE THE INDIANA
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OF ENVIRONMENTAL
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COMMISSIONER OF THE
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OF ENVIRONMENTAL
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Complainant, |
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v. |
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CASE NO. 2003-13540-W |
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CHRISTY TRAINOR, OWNER SANDCUT GROCERY, |
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Respondent. |
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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 (hereinafter
referred to as "Complainant") of the Indiana Department of
Environmental Management, a department of the State of
2.
The Respondent is Christy Trainor
("Respondent"), who owns and/or operates Sandcut Grocery, a public
water system ("PWS"), located at
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
Christy Trainor, Owner
Sandcut Grocery
5. The Notice of Violation identified the following violations:
A. 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 Respondent failed to monitor the Sandcut Grocery PWS system for nitrate during the years of 2000, 2001, and 2002, in violation of 327 IAC 8-2-4.1(f).
B. Pursuant to 327 IAC
IDEM's records indicate that the Respondent failed to collect at least one routine total coliform sample from the Sandcut Grocery PWS system during the fourth quarter of 2001, the first, second, third and fourth quarters of 2002, and the first, second, and third quarters of 2003, in violation of 327 IAC 8-2-8(c).
C. Pursuant to the public notice provisions of 327 IAC 8-2.1, (327 IAC 8-2-15(d) applies to 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 8-2-4.1(f) or 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's records indicate that the Respondent failed to notify persons served by the Sandcut Grocery PWS system of her failure to perform the nitrate monitoring required pursuant to 327 IAC 8-2-4.1(f), during 2000 and the total coliform monitoring required pursuant to 327 IAC 8-2-8(c) during the fourth quarter of 2000, the first, second and third quarters of 2001, in violation of 327 IAC 8-2-15(d).
IDEM's records further indicate that the Respondent failed to notify persons served by the Sandcut Grocery PWS system of her failure to perform the nitrate monitoring required pursuant to 327 IAC 8-2-4.1(f), during 2001 and 2002, and the total coliform monitoring required pursuant to 327 IAC 8-2-8(c) during the fourth quarter of 2001, the first, second, third and fourth quarters of 2002, and the first, second, and third quarters of 2003, in violation of the public notice provisions of 327 IAC 8-2.1.
6.
On
7. 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 Indiana Administrative Code (IAC), including, but not limited
to, 327 IAC 8-2-4.1(f), 327 IAC
3. The Respondent shall monitor nitrate at the entry point into the PWS system, within 30 days after the Effective Date, pursuant to 327 IAC 8-2-4.1(f). This monitoring requirement shall continue until the Respondent has connected to the Seelyville drinking water system and discontinued use of its well.
4. For purposes of this Agreed Order, the Respondent shall monitor for total coliform in the Sandcut Grocery PWS system for four consecutive quarters, beginning within 30 days after the Effective Date. This monitoring requirement shall continue until the Respondent has connected to the Seelyville drinking water system and discontinued use of its well.
5. Within the earlier of either 10 days after the Respondent receives any nitrate, or total coliform monitoring results or 10 days after the end of the applicable nitrate or total coliform monitoring period, the Respondent shall submit said monitoring results for the Sandcut Grocery PWS system 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, the Respondent also shall, for the first year subsequent to Effective Date, or until the Respondent has connected to the Seelyville drinking water system and discontinued use of its well, send to IDEM’s Office of Enforcement (OE) a copy of these monitoring results.
6. Within 30 days after the Effective Date, the Respondent shall provide public notice for the violations listed in the Finding of Facts, Paragraph 5.C., 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 notices commensurate with the type, form, manner, frequency, and issuing deadline direction identified in Step 6(a) above.
7. In the event that the Respondent fails to complete any PWS monitoring required by this Agreed Order, she 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 7. (a) above.
8. Pursuant to 327 IAC 8-2-13(d), the Respondent, within 10 days of issuing public notice under 327 IAC 8-2.1, shall submit to the Commissioner (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 shall also, for the first year subsequent to the Effective Date, or until the Respondent has connected to the Seelyville drinking water system and discontinued use of its well, send to IDEM's OE a second copy of foregoing issued certifications and their representative notices.
9. 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, IDEM
Or By Facsimile at (317) 308-3340
10. All submittals required by this Agreed Order to be submitted to OE, unless notified otherwise in writing, shall be sent to:
Aletha Lenahan, Case Manager
Office of Enforcement, IDEM
11.
Within 12 months of the Effective Date, the Respondent
shall connect to and obtain drinking water service from the Town of
12. Upon completion of the drinking water main connection from Seelyville to the Sandcut Grocery and prior to use of the new drinking water supply, the Respondent shall immediately contact Seelyville to verify that it has completed all required monitoring and testing results that demonstrate Seelyville has properly purged the lines and the drinking water is safe for the Sandcut Grocery’s use.
13. Within 10 days of completion of the Respondent’s connection to Seelyville’s drinking water system, the Respondent shall do the following:
(a) dismantle and remove all existing connections to the drinking water well,
(b) cap and seal off the well in an approved manner, and/or provide written certification that the well will not be used for human consumption, and
(c) submit to IDEM proof that the new drinking water line to Seelyville’s PWS has been properly installed by a qualified person(s).
14. The Respondent is assessed a civil penalty of One Thousand, Seven Hundred Seventy Dollars ($1,770). Said penalty amount shall be paid in 12 monthly payments. The first payment of One Hundred Twenty Dollars ($120) is due and payable to the Environmental Management Special Fund within 30 days of the Effective Date. The remaining 11 equal payments of One Hundred Thirty Five Dollars ($150) shall be made by the 10th day of each of the following 11 months. Interest shall accrue on any amount past due under this schedule or remaining after the 11-month period at a rate established by IC 24-4.6-1-101.
15. 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:
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Paragraph |
Violation |
Penalty
amount |
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Order Paragraph 3 |
Failure to monitor for nitrate within stated deadline. |
$1000 per sample missed. |
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Order Paragraph 4 |
Failure to monitor for total coliform for four consecutive quarters, beginning within 30 days after the Effective Date. |
$500 per sample missed. |
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Order Paragraph 5 |
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. |
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Order Paragraph 6 |
Failure to provide public notice for the monitoring violations listed in Finding of Fact Section, Paragraph 5.C of Order. |
$250 per each week, or part thereof, past the 30-day deadline. |
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Order Paragraph 7 |
Failure to provide public notice for monitoring violations of this Agreed Order. |
$250 per each week, or part thereof, past the DWB direction deadline. |
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Order Paragraph 8 |
Failure to send to IDEM within 10 days a representative copy of each public notice and its signed and accompanying Certification Form for Public Notice. |
$100 per each week, or part thereof, past the 10-day deadline. |
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Order Paragraph 11 |
Failure to and obtain service from the Town of |
$100 per each week, or part thereof, past the 10-day deadline. |
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Order Paragraph 12 |
Failure to demonstrate that the new water drinking supply is safe prior to consumption. |
$100 per each week, or part thereof, past the 10-day deadline. |
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Order Paragraph 13(a) |
Failure to dismantle and remove all existing connections to the drinking water well, as required. |
$100 per each week, or part thereof, past the 10-day deadline. |
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Order Paragraph 13(b) |
Failure to cap well and/or provide written certification, as required. |
$100 per each week, or part thereof, past the 10-day deadline. |
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Order Paragraph 13(c) |
Failure to proof that line to Seelyville’s PWS has been properly installed by a qualified person(s), as required. |
$100 per each week, or part thereof, past the 10-day deadline. |
16. 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
IC 13-30-4.
17. Civil and stipulated penalties are payable by check to the Environmental Management Special Fund. Checks shall include the Case Number 2003-13540-W, of this action and shall be mailed to:
Indiana Department of Environmental Management
18. In the event that the civil penalty required by Order Paragraph 14 is not paid within 30 days of the Effective Date, the 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.
19. 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.
20. 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.
21. 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.
22. 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.
23. This Agreed Order shall remain in effect until the Respondent has complied with the terms and conditions of Paragraphs 3 through 18 of this section of the Agreed Order and until IDEM issues a Close-Out letter to the Respondent.
TECHNICAL RECOMMENDATION: RESPONDENT:
Sandcut Grocery
Water Enforcement Section
Office of
Enforcement Title: Owner
Date: _______________________________ Date: ______________________________
COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:
Department of Environmental Management
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS ______8th______ DAY OF _______October____________, 2004.
For The Commissioner:
___________________________
Felicia A. Robinson
Deputy Commissioner
for Legal Affairs