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STATE OF |
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BEFORE THE INDIANA DEPARTMENT |
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COMMISSIONER OF THE DEPARTMENT Complainant, v.
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.
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 Phoenix Fabricators and Erectors, Inc. (“Respondent”), which owns
and operates a nontransient noncommunity public water system (“PWS”), located
at 182 South County Road 900 East, in Avon, Hendricks County, Indiana (“Site”),
that operates under PWSID Number IN2320890 and serves 65 customers.
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:
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Mr. Jeffrey A. Short, President |
National Registered Agents, Inc. |
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5.
A
records review was conducted by a representative of IDEM’s Office of Water
Quality (“OWQ”) Drinking Water Branch.
The following violation was in existence at the time of the records
review.
6.
Pursuant
to 327 IAC 8-2-4(d), the maximum contaminant level (“MCL”) for the inorganic
chemical Arsenic is 0.010 milligrams per liter (“mg/L”).
7.
Pursuant
to 327 IAC 8-2-4.1(k), for systems that are conducting monitoring at a
frequency greater than annual, compliance with Arsenic MCL is determined by a
running annual average (“RAA”) at each sampling point. If any one (1) sample would cause the annual
average to be exceeded, then the system is out of compliance immediately.
8.
IDEM
records indicate the Respondent exceeded the MCL of 0.010 mg/L for Arsenic
based on the initial sample of 0.048 mg/L collected on March 23, 2006, in
violation of 327 IAC 8-2-4(d) and 327 IAC 8-2-4.1(k).
9.
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(d) and
327 IAC 8-2-4.1(k).
3.
Within
thirty (30) days of the Effective Date of this Agreed Order, the Respondent
shall develop and submit to IDEM for approval a Compliance Plan (“CP”) which
identifies actions that Respondent will take to achieve and maintain compliance
with the Arsenic MCL. The CP shall
include an implementation and completion schedule, with specific milestone
dates.
4.
After
the completion of the work described in the CP, the Respondent shall
demonstrate four (4) consecutive quarters of compliance for Arsenic
(“Compliance Demonstration”). In the
event the Respondent fails to make the Compliance Demonstration, Respondent
shall within sixty (60) days of becoming aware that the Compliance
Demonstration cannot be achieved, develop and submit to IDEM for approval an
Additional Action Plan (“AAP”), which identifies the actions the Respondent
will take in order to achieve compliance with the applicable requirements. The AAP shall also include an implementation
and completion schedule, including specific milestone dates.
5.
The
plans required by Paragraphs 3 and 4 above are subject to IDEM approval. If IDEM deems a plan inadequate, a revised
plan shall be submitted within fifteen (15) days of receipt of notice from IDEM
of the inadequacies thereof. If, after
submission of the first revised document, IDEM still finds the document to be
inadequate, then IDEM will request further modification of the plan as
necessary to meet IDEM’s requirements, and require re-submittal of the plan by
a specific date. If the subsequently
submitted second revised plan does not meet IDEM’s approval, IDEM will suggest
specific modifications to be made to the plan and require re-submittal by a
specific date. If, by the specified
date, the Respondent does not incorporate the IDEM-suggested modifications into
the third revised plan or submit an alternative adequate plan (as determined by
IDEM), the Respondent will be subject to stipulated penalties as described
below. The Respondent, upon receipt of
written notification from IDEM, shall immediately implement the approved plan
and adhere to the milestone dates therein.
The approved CP and AAP shall be incorporated into the Agreed Order and
shall be deemed an enforceable part thereof.
Failure to achieve compliance at the conclusion of work under an AAP
will subject Respondent to additional enforcement action.
6.
Within
ten (10) days after completion of each milestone in the CP, the Respondent
shall submit written notification of such to IDEM. The notification shall identify each
completed milestone, including the date of completion.
7.
The
Public Notice shall remain in effect and be continually posted, adding current
sample results, until the MCL exceedance has been resolved.
8.
All
submittals required by this Agreed Order, unless notified otherwise in writing,
shall be sent to:
Jennifer
Donahue, Enforcement Case Manager
Indiana
Department of Environmental Management
Office of
Enforcement – Mail Code 60-02
9.
In
the event the terms and conditions of the following Order paragraphs are
violated, the Complainant may assess and the Respondent shall pay a stipulated
penalty in the following amount:
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Paragraph |
Violation |
Stipulated
penalty |
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3 |
Failure
to submit compliance plan within the required time period. |
$200 per
week late, or part thereof. |
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4 |
Failure
to submit AAP, if required within the required time period. |
$200 per
week late, or part thereof. |
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5 |
Failure
to submit or resubmit a revised CP or AAP, if required, within the required
time period. |
$200 per
week late, or part thereof. |
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5 |
Failure
to meet any milestone date set forth in the approved CP or AAP. |
$200 per
week late, or part thereof. |
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Failure
to submit notification of milestone completion, within the required time
period. |
$200 per
week late, or part thereof. |
10.
Stipulated
penalties shall be due and payable within thirty (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
11.
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
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 its
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.
This
Agreed Order shall remain in effect until the Respondent complies with the
terms of Order Paragraph Nos. 3 through 11 and IDEM issues a Close-Out letter.
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TECHNICAL
RECOMMENDATION: |
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RESPONDENT: |
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Department
of Environmental Management |
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By: |
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By: |
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Mark W.
Stanifer |
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Printed: |
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Section
Chief, Water Section |
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Title: |
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Office of
Enforcement |
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Date: |
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COUNSEL
FOR COMPLAINANT: |
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COUNSEL
FOR RESPONDENT: |
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Department
of Environmental Management |
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By: |
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Office of
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Date: |
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APPROVED
AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT THIS |
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DAY OF |
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For The
Commissioner: |
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Signed on
July 28, 2006 |
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Matthew
T. Klein |
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Assistant
Commissioner for |
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Compliance
and Enforcement |
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