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. 2004-14130-W
					)
MOORECO IV, INC.,					)
d/b/a McDonalds-Fishers,					)
					)
	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 Respondent may have in any future administrative or judicial proceeding, except a proceeding to enforce this 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 Respondent is Mooreco IV, Inc., ("Respondent"), which operates a public water supply (PWS) system located at McDonalds-Fishers restaurant, at 9290 East 131^st Street, Fishers, Hamilton County, Indiana. This is a transient noncommunity PWS system, PWSID Number 2290893, that serves 222 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. Eric Patrick Moore, President

Mooreco IV, Inc. d/b/a

McDonalds-Fishers

385 Breakwater Drive

Fishers, Indiana 46038-9508

and

Mr. Timothy J. Bender, Registered Agent

Mooreco IV, Inc. d/b/a

McDonalds-Fishers

2700 Market Tower

10 West Market Street

Indianapolis, Indiana 46204-5140

5. The Notice of Violation identified the following violations:

A. Pursuant to 327 IAC 8-2-4.1(f), all PWS systems shall monitor to determine compliance with the maximum contaminant level (MCL) for nitrate.

IDEM records indicate that the Respondent failed to monitor its PWS system for nitrate during the year of 2002, in violation of 327 IAC 8-2-4.1(f).

B. Pursuant to 327 IAC 8-2-8(c), a noncommunity water supply system which serves no more than 1,000 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 its PWS system during the first, second, third, and fourth quarters of 2002, the first, second, and fourth quarters of 2003, and the first quarter of 2004, in violation of 327 IAC 8-2-8(c).

C. Pursuant to the public notice provisions of 327 IAC 8-2.1-7, 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 its PWS system of the failure to perform the total coliform monitoring required pursuant to 327 IAC 8-2-8(c) during the first, second, third and fourth quarters of 2002, the first and fourth quarters of 2003, and the first quarter of 2004, in violation of the public notice provisions of 327 IAC 8-2.1-7.

6. IDEM issued Violation Review Letters (VRLs) to the Respondent on February 2, 2002, May 17, 2002, August 9, 2002, October 31, 2002, January 31, 2003, May 9, 2003, August 1, 2003, February 2, 2004, and May 7, 2004. These VRLs addressed total coliform monitoring violations that occurred respectively during the fourth quarter of 2001, the first quarter of 2002, the second quarter of 2002, the third quarter of 2002, the fourth quarter of 2002, the first quarter of 2003, the second quarter of 2003, the fourth quarter of 2003, and the first quarter of 2004. In addition, the Respondent was also issued a June 5, 2003, Violation Letter (VL) warning of violation of failure to monitor total coliform for the first, second, third, and fourth quarters of 2002, and failure to monitor nitrate for the year 2002. Furthermore, each VRL and the VL requested that the recipient provide a written response to IDEM within ten days of its receipt. IDEM received no response to these VRLs or the VL.

7. On July 25, 2003, the Respondent provided to IDEM an acceptable sample report for nitrate.

8. On September 4, 2003, the Respondent provided to IDEM a copy of a public notice for failure to monitor and report for total coliform for the second quarter of 2003.

9. On May 4, 2005, Respondent’s counsel provided to IDEM evidence of later PWS samplings for lead, nitrate and total coliform. The lead samples applied to June 9, 2004, September 15, 2004, December 14, 2004, and March 15, 2005. (Lead sampling had not been cited in violation by the Notice of Violation.) The nitrate samples applied to June 8, 2004, September 14, 2004, December 14, 2004, and March 15, 2005. This means that Respondent’s PWS system has cumulatively demonstrated acceptable compliance for nitrate for the successive years 2003, 2004 and 2005. The total coliform samples applied to June 8, 2004, September 14, 2004, December 14, 2004, and March 15, 2005. This means that Respondent’s PWS system has acceptably demonstrated later compliance for total coliform for the successive second, third, and fourth quarters of 2004, and the first quarter of 2005.

10. On May 4, 2005, IDEM made an administrative evaluation of the first quarter of 2002 total coliform sampling violation cited in the Notice of Violation. The late date that applies for citing this violation was April 10, 2005, while the Notice of Violation was issued April 15, 2005. Consequently, this violation event occurred five days prior to the three-year statute of limitations period applying for enforcement. Consequently and henceforth, the first quarter 2004 sampling violation, for total coliform cited in the Notice of Violation, will be overlooked for purposes of this enforcement action.

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 his 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 8-2-8(c), and the public notice provisions of 327 IAC 8-2.1-7.

3. Within 30 days after the Effective Date of this Agreed Order, the Respondent shall provide the missing public notices for the violations that are listed in Paragraph 5.C of the Findings of Fact, by following these steps:

A. Telephone the DWB at 317/308-3288 (or toll free 800/451-6027, extension 308-3288) for direction about the applicable public notice requirements of 327 IAC 8-2.1-7. 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 A.

4. Pursuant to 327 IAC 8-2-13(d), the Respondent, within ten days of issuing public notice under 327 IAC 8-2.1-7, 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, 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.

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

Indiana Department of Environmental Management

OWQ Drinking Water Branch-Mail Code 66-34

100 N. Senate Avenue

Indianapolis, IN 46204-2251

Or by facsimile at 317-308-3340

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

Richard Deitsch, Case Manager

Indiana Department of Environmental Management

Office of Enforcement-Mail Code 60-02

100 North Senate Avenue

Indianapolis, IN 46204-2251

7. The Respondent is assessed a civil penalty of Two Thousand, One Hundred and Eighty Dollars ($2,180). Said penalty amount shall be due and payable to the Environmental Management Special Fund within 30 days of the Effective Date of this Agreed Order.

8. 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:

Order Paragraph Number	Violation	Penalty
3	Failure to provide the missing public notices for the monitoring violations that are listed in Paragraph 5.C of the Findings of Fact	$250 per each week, or part thereof, past the 30-day deadline.
4	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.

9. 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.

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:

Indiana Department of Environmental Management

Cashiers Office-Mail Code 50-10C

100 N. Senate Avenue

Indianapolis, IN 46204-2251

11. 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.

12. 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.

13. 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.

14. 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 the Respondent pursuant to this Agreed Order, shall not in any way relieve the Respondent of its obligation to comply with the requirements of any applicable permit or order or with any other applicable federal or state law or regulation.

15. The Complainant does not, by its approval of this Agreed Order, warrant or aver in any manner that the Respondent’s compliance with any aspect of this Agreed Order will result in compliance with the provisions of any permit or 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 the Respondent may incur as a result of Respondent’s efforts to comply with this Agreed Order.

16. 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 seek additional civil penalties for the violations specified in the Notice of Violation.

17. Nothing in this Agreed Order shall prevent IDEM or anyone acting on its behalf from communicating with the United States Environmental Protection Agency (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 the Respondent may incur as a result of such communications with the EPA or any other agency or entity.

18. This Agreed Order shall remain in effect until the Respondent has complied with the terms and conditions of Paragraphs 3 through 10 of this section of the Agreed Order and until IDEM issues a Close-Out letter to the Respondent.

19. 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.

TECHNICAL RECOMMENDATION:			RESPONDENT:
Department of Environmental Management			Mooreco IV, Inc.
By:			By:
	Mark W. Stanifer, Chief			Eric Patrick Moore
	Water Enforcement Section			President
	Office of Enforcement
Date:			Date:
COUNSEL FOR COMPLAINANT:			COUNSEL FOR RESPONDENT:
Department of Environmental Management
By:			By:
	Jay Rodia
	Office of Legal Counsel
Date:			Date:
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS		DAY OF			, 200	.
			For The Commissioner:
			Signed August 29, 2005
			Matthew T. Klein
			Assistant Commissioner
			Compliance & Enforcement