STATE OF INDIANA

COUNTY OF MARION

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SS:

BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v.

JIM SARKINE, D/B/A SARKINES PICNIC PARK,

Respondent.

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Case No. 2006-15805-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 (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 Jim Sarkine, owner of the Sarkine Picnic Park, (Respondent), which operates a public water supply (PWS) system located at 6575 East 200 North, in Plainfield, Hendricks County, Indiana.  This is a transient noncommunity PWS system, PWSID #2320896 and PWSID #2320897 that serves 50 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. Jim Sarkine

d/b/a Sarkine Picnic Park

6575 East CR 200 North

Avon, Indiana  46123

 

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 years of 2004 and 2005, in violation of 327 IAC 8-2-4.1(f).

 

(b)               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 8-2-4.1(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 records further indicate that the Respondent failed to notify persons served by its PWS system of the failure to perform the nitrate monitoring required pursuant to 327 IAC 8-2-4.1(f) during 2004 and 2005, in violation of the public notice provisions of 327 IAC 8-2.1-7.

 

(c)        Pursuant to Indiana Code (IC) 13-18-20.5-2, PWS systems are required to pay annual operating fees.  Respondent has failed to pay the annual operating fee for 2004 that was assessed by an invoice dated July 7, 2005, in violation of IC 13-18-20.5-2, and is also considered delinquent.  Pursuant to IC 13-18-20.5-4, PWS systems that are delinquent in paying their annual operating fees may be assessed a delinquent fee.  Respondent has been assessed a delinquent fee by an invoice dated October 7, 2005, and has failed to pay its delinquent fee, in violation of IC 13-18-20.5-4.

 

6.                  On March 21, 2006, IDEM issued a Violation Review Letters (VRL) to the Respondent. The VRL addressed nitrate monitoring violations that occurred during the years of 2004 and 2005. Furthermore, the VRL requested that the recipient provide a written response to IDEM within fourteen days of its receipt.  IDEM received no response to the VRL.

 

7.                  In a letter dated August 7, 2006, Jim Sarkine updated the IDEM Office of Enforcement as to the status of the Sarkine Picnic Park.  This included documentation that the facility had not been in operation for the years of 2005 and 2006.

 

8.                  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) and the public notice provisions of 327 IAC 8-2.1-7.

 

3.                  The Respondent will be making a determination as to whether or not to operate the facility for the 2007 season.  The Respondent shall submit to the IDEM Office of Enforcement (OE) at the address in Paragraph 7 below, notification of that determination no later than March 1, 2007 and will take the following appropriate actions:

 

(a)               If the Respondent determines that the facility will not be operated in 2007, the Respondent shall notify IDEM’s Office of Water Quality (OWQ) Drinking Water Branch (DWB) at the address in Paragraph 6 below and follow the recommended procedures to inactivate the Public Water Supply no later than April 1, 2007.

 

(b)               If the Respondent determines that the facility shall be operated in 2007:

i.                    the Respondent shall monitor nitrate at the entry point into the PWS system, thirty (30) days prior to the opening of the facility, pursuant to 327 IAC 8-2-4.1(f);

ii.                  within the earlier of either ten days after the Respondent receives any nitrate monitoring results or ten days after the end of the applicable nitrate monitoring period, the Respondent shall submit said monitoring results for its PWS system to IDEM’s, OWQ 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 the Effective date, send to IDEM’s OE a copy of these monitoring results; and

iii.                the Respondent shall contact the IDEM DWB Inspection Section and make arrangements to have a DWB inspector conduct a site visit to make a determination for the classification of the wells on the site.

 

4.         In the event that the Respondent fails to complete any PWS monitoring required by this Agreed Order, it 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 317/308-3288 (or toll free 800/451-6027, extension 308-3288) for immediate 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 issuance deadline direction identified in Step (a).

 

5.                  Pursuant to 327 IAC 8-2-13(d), the Respondent, within ten days of issuing public notice under 327 IAC 8-2.1, shall submit to the Commissioner (IDEM’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, 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.

 

6.         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

2525 N. Shadeland Ave.

Indianapolis, IN  46219-1794

 

Or by telefax at 317-308-3340

 

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

 

Christina Sorensen, Case Manager

Indiana Department of Environmental Management

Office of Enforcement, Mail Code 60-02

100 North Senate Avenue

Indianapolis, IN  46204-2251

 

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:

 

Paragraph

Violation

Penalty

Order Paragraph 3

Failure to timely submit notification to IDEM.

$100 per week, or part thereof late.

Order Paragraph 3.a.

Failure to inactivate the PWS by April 1, 2007, if facility will not be operated in 2007

$500 per each week, or part thereof, late.

Order Paragraph 3.b.ii.

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

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

Order Paragraph 3.b.iii.

Failure to make arrangements for DWB inspector to make well classification on site prior to opening in 2007.

$500

Order Paragraph 4

Failure to provide public notice for failure to complete PWS monitoring.

$250 per each week, or part thereof.

Order Paragraph 5

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.       Within 30 days after the Effective Date, the Respondent shall pay the outstanding annual operating fees and delinquent fees for 2004, by sending a check payable to IDEM in the amount of $146.68 to the address in paragraph 11 below.

 

11.       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

 

12.       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.  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.

 

15.       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 his obligation to comply with the requirements of any applicable permit or order or with any other applicable federal or state law or regulation.

 

16.       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.

 

17.       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.

 

18.       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.

 

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.

 

20.       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.

 

 

TECHNICAL RECOMMENDATION:

 

RESPONDENT:

Department of Environmental Management

 

Sarkine Picnic Park

 

 

 

By:

 

 

By:

 

 

Mark W. Stanifer

 

Printed:

 

 

Section Chief, Water Section

 

Title:

 

 

Office of Enforcement

 

 

 

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

 

, 2007.

 

 

For The Commissioner:

 

 

 

Signed on January 5, 2007

 

Robert B. Keene

 

Assistant Commissioner

 

Office of Legal Counsel and Enforcement