|
STATE OF |
) |
|
BEFORE THE INDIANA
DEPARTMENT |
||
|
|
|||||
|
COMMISSIONER OF THE
DEPARTMENT Complainant, v. ROLLING Respondent. |
) |
|
|||
AGREED ORDER
Complainant and 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 (“Complainant”) of the Indiana Department of Environmental
Management (“IDEM”), a department of the State of
2.
Respondent is
3.
IDEM has
jurisdiction over the parties and the subject matter of this action.
4.
Pursuant to IC
13-30-3-3, IDEM issued a Notice of Violation via certified to:
|
David
Yoder |
|
Rolling
|
|
|
|
|
5.
During an investigation
conducted by a representative of IDEM, the following violations were found:
a. Pursuant
to 327 Indiana Administrative Code (“IAC”) 8-2-8(c), a noncommunity PWS system using
ground water only which serves no more than 1,000 persons must collect a least
one (1) routine total coliform sample each calendar quarter.
IDEM
records indicate Respondent failed to collect at least one routine total coliform
sample from its PWS system during the third quarter of 2005, the second and
fourth quarters of 2006, and the second quarter of 2007; each in violation of
327 IAC 8-2-8(c).
b. Pursuant
to 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 Respondent failed to notify persons served by its PWS system
of the failure to perform total coliform monitoring required pursuant to 327
IAC 8-2-8(c) during the third quarter of 2005, the second and fourth quarters
of 2006, and the second quarter of 2007; each in violation of 327 IAC 8-2.1-7.
6. In
recognition of the settlement reached, 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 Complainant
or Complainant’s delegate, and has been received by Respondents. This Agreed Order shall have no force or
effect until the Effective Date.
2.
Respondent shall
comply with all applicable provisions of the Indiana Administrative Code (“IAC”),
including but not limited to 327 IAC 8-2-8(c) and 327 IAC 8-2.1-7.
3.
Beginning within
thirty (30) days of the Effective Date of this Order, Respondent shall, for the
purposes of this Order, monitor at least one (1) routine total coliform sample
in its PWS system for four (4) consecutive quarters, pursuant to 327 IAC
8-2-8(c).
4.
Within the
shorter of either ten (10) days after Respondent receives any total coliform
monitoring results or ten (10) days after the end of the applicable total coliform
monitoring period, Respondent shall submit said monitoring results for its PWS
system to the Drinking Water Branch (“DWB”) of IDEM, pursuant to 327 IAC
8-2-13(a).
5.
Within thirty
(30) days of the Effective Date of this Order, Respondent shall provide public
notice pursuant to 327 IAC 8-2.1-7, for the past total coliform monitoring violations
listed in Section 1, Paragraph 5 of the Findings of Fact, by following these
steps:
(a)
Complete
attached public notice and certification form for public notice.
(b)
Post public notice
where the public has ready access for viewing, and for as long as the violation
persists, but in no case less than seven (7) days, even if the violation is
resolved.
6.
Within ten (10)
days of issuing the public notice in Paragraph 5 of this Order, Respondent
shall send to the DWB of IDEM and the Office of Enforcement (“OE”) of IDEM a
signed certification form for public notice and representative copy of the
public notice issued pursuant to 327 IAC 8-2-13(d).
7.
All submittals
required by this Agreed Order to be submitted to the DWB of IDEM, unless Respondent
is notified otherwise in writing by IDEM, shall be sent to:
|
OWQ
Drinking Water Branch – Mail Code 66-34 |
|
Indiana
Department of Environmental Management |
|
|
|
|
8.
All submittals
required by this Agreed Order to be submitted to the OE of IDEM, unless
Respondent is notified otherwise in writing by IDEM, shall be sent to:
|
Sue
Bock, Enforcement Case Manager |
|
Office
of Enforcement – Mail Code 60-02 |
|
Indiana
Department of Environmental Management |
|
|
|
|
9.
In the event the
terms and conditions of the following paragraphs are violated, Complainant may
assess and Respondent shall pay a stipulated penalty in the following amount:
|
Paragraph |
Violation |
Stipulated
Penalty |
|
3 |
Failure to monitor total coliform for four
consecutive quarters beginning within 30 days of the Effective Date. |
$500 per sample missed. |
|
4 |
Failure to submit total coliform sample results to
IDEM within the shorter 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 week, or part thereof, past the 10-day
deadline. |
|
5 |
Failure to provide public notice for the monitoring
violations listed in Paragraph 5.b of the Findings of Fact within 30 days of
the Effective Date. |
$250 per week, or part thereof, past the 30-day
deadline. |
|
6 |
Failure to send to IDEM within 10 days a
representative copy of each public notice and its signed accompanying
Certification form for public notice. |
$100 per week, or part thereof, past the 10-day
deadline. |
10.
Stipulated
penalties shall be due and payable within thirty (30) days after Respondent
receives written notice that Complainant has determined a stipulated penalty is
due. Assessment and payment of
stipulated penalties shall not preclude Complainant from seeking any additional
relief against Respondent for violation of this Agreed Order. In lieu of any of the stipulated penalties
set out above, Complainant may seek any other remedies or sanctions available
by virtue of Respondent’s violation of this Agreed Order or Indiana law, including,
but not limited to, civil penalties pursuant to IC 13-30-4.
11.
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 |
|
Cashier
– Mail Code 50-10C |
|
|
|
|
12.
This Agreed
Order shall apply to and be binding upon Respondent and its successors and
assigns. Respondent’s signatories to this Agreed Order certify that he is fully
authorized to execute this Agreed Order and legally bind the party he represents. No change in ownership, corporate, or partnership
status of Respondent shall in any way alter its status or responsibilities
under this Agreed Order.
13.
In the event
that any terms of this 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 this Agreed Order did not contain the invalid terms.
14.
Respondent shall
provide a copy of this Agreed Order, if in force, to any subsequent owners or
successors before ownership rights are transferred. 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 Respondent pursuant to
this Agreed Order, shall not in any way relieve Respondent of its obligation to
comply with the requirements of its applicable permit or any applicable Federal
or State law or regulation.
16.
Complainant does
not, by its approval of this Agreed Order, warrant or aver in any manner that
Respondent’s compliance with any aspect of this Agreed Order will result in
compliance with the provisions of any permit, 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 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, and hereby waives its right to, seek additional civil
penalties for the same violations specified in the NOV.
18.
Nothing in this
Agreed Order shall prevent IDEM [or anyone acting on its behalf] from
communicating with the 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 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 Respondent has complied with the terms and
conditions of Paragraphs 3 through 11 of this
Agreed Order and until IDEM issues a Resolution of Case letter to Respondent.
|
TECHNICAL RECOMMENDATION: |
|
RESPONDENT: |
|||||
|
Department of Environmental Management |
|
Rolling |
|||||
|
|
|
|
|||||
|
By: |
|
|
By: |
|
|||
|
|
Mark W.Stanifer |
|
Printed: |
|
|||
|
|
Section Chief, Water Section |
|
Title: |
|
|||
|
|
Office of Enforcement |
|
|
|
|||
|
Date: |
|
|
Date: |
|
|||
|
|
|
|
|
|
|||
|
|
|
|
|||||
|
COUNSEL FOR COMPLAINANT: |
|
COUNSEL FOR RESPONDENT: |
|||||
|
For the Department of Environmental Management |
|
|
|||||
|
|
|
|
|||||
|
By: |
|
|
By: |
|
|||
|
|
|
|
|
|
|||
|
|
Deputy Attorney General |
|
|
|
|||
|
Date: |
|
|
Date: |
|
|||
|
|
|
|
|
|
|||
|
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF
ENVIRONMENTAL |
|||||||
|
MANAGEMENT THIS |
|
DAY
OF |
|
, 2007. |
|||
|
|
|||||||
|
|
For the Commissioner: |
||||||
|
|
|
||||||
|
|
Signed on November 5, 2007 |
||||||
|
|
Robert B. Keene |
||||||
|
|
Assistant Commissioner |
||||||
|
|
Office of Legal Counsel and Enforcement |
||||||