STATE OF INDIANA

COUNTY OF MARION

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BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v.

VERNON AND ESTER MILLER,

Respondents.

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Case No. 2022-28932-D

 

 

AGREED ORDER

 

Complainant and Respondents 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 Indiana Code (IC) 13-30-3-3, entry into the terms of this Agreed Order does not constitute an admission of any violation contained herein. Respondents' entry into this Agreed Order shall not constitute a waiver of any defense, legal or equitable, which Respondents may have in any future administrative or judicial proceeding, except a proceeding to enforce this 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 Indiana created by IC 13-13-1-1.

 

2.        Vernon and Ester Miller d/b/a Dutch Creek Animal Farm (Respondents) own and/or operate a transient, non-community, seasonal, public water system (PWS) with PWSID No. IN2440114, serving 70 persons, which is in operation from May 1 to October 31, annually. The PWS is located at 6255 North 1000 West, Shipshewana, LaGrange County, Indiana (the Site).

 

3.        IDEM has jurisdiction over the parties and the subject matter of this action pursuant to IC 13-30-3.

4.        Pursuant to IC 13-30-3 et seq., on November 18, 2022, IDEM issued a Notice of Violation via Certified Mail to:

 

Vernon and Ester Miller, Owners

Dutch Creek Animal Farm

6255 North 1000 West

Shipshewana, IN  46565

 

5.        327 Indiana Administrative Code (IAC) 8-2-2 states that each PWS shall comply with all provisions of this rule and 327 IAC 8-2.1.

 

6.        Pursuant to the Revised Total Coliform Rule at 327 IAC 8-2.4-1, 40 Code of Federal Regulations (CFR) 141, Subpart Y is incorporated by reference.

 

7.        Pursuant to 40 CFR 141.854(i)(2), a seasonal system must monitor every month that it is in operation unless it meets the criteria in paragraphs (i)(2)(i) through (iii) of this section to be eligible for monitoring less frequently than monthly beginning April 1, 2016, except as provided under paragraph (c) of this section.

 

Pursuant to 40 CFR 141.860(c)(1), failure to take every required routine or additional routine sample in a compliance period is a monitoring violation.

 

IDEM records indicate Respondents failed to monitor at least one total coliform sample from the PWS during the months of May 2020, May, June, August, and September 2021, and May, June, and July 2022, in violation of 40 CFR 141.854(i)(2), and 40 CFR 141.860(c)(1).

 

8.        Pursuant to 40 CFR 141.402(a)(2) and 327 IAC 8-2.3-4(a)(2), a ground water system must collect, within 24 hours of notification of the total coliform-positive sample, at least one ground water source sample from each ground water source in use at the time the total coliform-positive sample was collected.

 

IDEM records indicate Respondents failed to take at least one ground water source sample after the total coliform-positive sample on October 20, 2020, in violation of 40 CFR 141.402(a)(2) and 327 IAC 8-2.3-4(a)(2).

 

On March 28, 2023, Respondents collected the required ground water source sample after the total coliform-positive sample on October 20, 2020, in accordance with 40 CFR 141.402(a)(2) and 327 IAC 8-2.3-4(a)(2).

 

9.        Pursuant to 40 CFR 141.854(i)(1), beginning April 1, 2016, all seasonal PWS systems must demonstrate completion of a State-approved start-up procedure, which may include a requirement for start-up sampling prior to serving water to the public.

 

Pursuant to 40 CFR 141.860(b)(2), a treatment technique violation occurs when a seasonal PWS system fails to complete a State-approved start-up procedure prior to serving water to the public.

 

Pursuant to 40 CFR 141.860(d)(3), failure to submit certification of completion of State-approved start-up procedure by a seasonal PWS system is a violation.

 

IDEM records indicate Respondents failed to submit certification of completion of the State-approved start-up procedure prior to the start of seasonal operation on April 1, 2022. The deadline to submit State-approved start-up was on June 7, 2022, to date, Respondents failed to submit the State-approved start-up, in violation of 40 CFR 141.854(i)(1), 40 CFR 141.860(b)(2), and 40 CFR 141.860(d)(3).

 

On March 28, 2023, IDEM received the certification of completion of the State-approved start-up procedure prior to the start of seasonal operation for 2023, in accordance with 40 CFR 141.854(i)(1), 40 CFR 141.860(b)(2), and 40 CFR 141.860(d)(3).

 

10.         Pursuant to 40 CFR 141.861(a)(4), a system that has failed to comply with a coliform monitoring requirement must report the monitoring violation to the State within 10 days after the system discovers the violation, and notify the public in accordance with 40 CFR 141 subpart Q.

 

Pursuant to 327 IAC 8-2.1-7, the owner or operator of a PWS which fails to perform monitoring is required to notify persons served by the PWS. A copy of the public notice must also be sent to the Commissioner within 10 days after the completion of each public notice.

 

IDEM records indicate that Respondents:

 

A.   Failed to notify persons served by the PWS of the failure to monitor at least one total coliform sample from the PWS for the months of May 2020, May, June, August, and September 2021, and May, June, and July 2022, each in violation of 40 CFR 141.861(a)(4) and 327 IAC 8-2.1-7;

B.   Failed to notify the public after the failure to collect at least one ground water source sample from each ground water source in use at the time of the total coliform-positive sample on October 20, 2020, in violation of 40 CFR 141.861(a)(4), and 327 IAC 8-2.1-7; and

C.   Failed to notify persons served by the PWS of the failure to demonstrate completion of, and failure to submit certification of, State-approved start-up procedure by a seasonal PWS system, in violation of 40 CFR 141.854(i)(1), 40 CFR 141.860(b)(2), and 40 CFR 141.860(d)(3).

 

 

On May 1, 2023, Respondents submitted a copy of the completed public notice and corresponding certification to IDEM for the failure to perform monitoring outlined in 10.A. through 10.C. above, as required by 40 CFR 141.861(a)(4), and 327 IAC 8-2.1-7.

 

11.         Orders of the Commissioner are subject to administrative review by the Office of Environmental Adjudication under IC 14-21.5; however, in recognition of the settlement reached, Respondents acknowledges notice of this right and 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 adopted by Complainant or Complainant’s delegate (as evidenced by signature), and the adopted Agreed Order has been received by Respondents. This Agreed Order shall have no force or effect until the Effective Date. In addition to addressing the violations cited in Paragraphs 7 through 10 of the Findings of Fact above, this Agreed Order also addresses any additional violations of these same rules that may have occurred subsequent to the issuance of the Notice of Violation and prior to the Effective Date.

 

2.        Within 30 days prior to commencing seasonal operation at the Site in 2024, Respondents shall demonstrate completion of a State-approved start-up procedure for 2024 and submit the completed form (attached) to IDEM.

 

3.        Within 15 days of commencing seasonal operation at the Site or within 15 days from the Effective Date, if seasonal operation has commenced, Respondents shall, for the purposes of this Order, monitor and report at least one total coliform sample in the PWS per month for six (6) consecutive months of operation during May through October (Compliance Demonstration). During the Compliance Demonstration period, Respondents shall be subject to stipulated penalties.

 

It is the responsibility of Respondents to continue monitoring for total coliform monthly pursuant to 40 CFR 141.854(i)(2).

 

4.        If the results of any sample for total coliform indicate a positive result, the following actions shall be taken:

 

A.   Further analyze the positive sample for E. coli;

B.   Contact Sandra Decastro, IDEM’s Compliance Section, Drinking Water Branch, immediately at (317) 234-7444, for further instructions, and complete all requirements as instructed.

 

Respondents shall be subject to stipulated penalties for failure to complete any requirements in accordance with IDEM’s notification(s), following a Maximum Contaminant Level (MCL) exceedance.

 

5.        Immediately upon the Effective Date, for future monitoring reporting violations, Respondents shall provide public notice to the State within 10 days and notify the public pursuant to 40 CFR 141.861(a)(4) and 327 IAC 8-2.1-7.

 

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

 

Aletha Lenahan, Enforcement Case Manager

Office of Water Quality – IGCN N1255

Indiana Department of Environmental Management

100 N. Senate Avenue

Indianapolis, IN  46204-2251

 

7.        Respondents are assessed and agree to pay a civil penalty of Four Hundred Five Dollars ($405). Said penalty amount shall be due and payable to the “Environmental Management Special Fund” within 30 days of the Effective Date, the 30th day being a “Due Date.”

 

8.        In the event the terms and conditions of the following paragraphs are violated, Complainant may assess, and Respondents shall pay a stipulated penalty in the following amount:

 

Paragraph:

Violation:

Stipulated Penalty:

2

Failure to complete the State-approved start-up procedure for 2024.

$300 per week late, or part thereof.

2

Failure to submit the form to IDEM within the required time period.

$200 per week late, or part thereof.

3

Failure to monitor total coliform for 6-consecutive months of operation.

$250 per sample missed.

4

Failure to comply with any or all the requirements of this paragraph.

$300 per week for violation of any part of this requirement.

5

Failure to provide public notice.

$250 per week, or part thereof.

 

9.        Stipulated penalties shall be due and payable no later than the 30th day after Respondents receive written notice that IDEM has determined a stipulated penalty is due, the 30th day being a “Due Date.” IDEM may notify Respondents at any time that a stipulated penalty is due. Failure to notify Respondents in writing in a timely manner of a stipulated penalty assessment shall not waive IDEM’s right to collect such stipulated penalty or preclude IDEM from seeking additional relief against Respondents for violation of this Agreed Order. Neither assessment nor payment of stipulated penalties shall preclude IDEM from seeking additional relief against Respondents for a violation of this Agreed Order. Such additional relief includes any remedies or sanctions available pursuant to 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 2022-28932-D of this action and shall be mailed to:

 

Indiana Department of Environmental Management

Accounts Receivable

IGCN, Room N1340

100 N. Senate Avenue

Indianapolis, IN  46204

 

11.     This Agreed Order shall apply to and be binding upon Respondents, their successors, and assigns. This Agreed Order shall jointly and severally apply to and be binding upon Respondents and their successors and assigns. Respondents’ signatories to this Agreed Order certify that they are fully authorized to execute this Agreed Order and legally bind the party they represent. No change in ownership, corporate, or partnership status of Respondents shall in any way alter their status or responsibilities under this Agreed Order.

 

12.     In the event that the monies due to IDEM pursuant to this Agreed Order are not paid on or before their Due Date, Respondents shall pay interest on the unpaid balance and any accrued interest at the rate established by IC 24-4.6-1. The interest shall be computed as having accrued from the Due Date until the date that Respondents pay any unpaid balance. The interest shall continue to accrue on the first of each month until the civil penalty and any interest accrued are paid in full. Such interest shall be payable to the “Environmental Management Special Fund,” and shall be payable to IDEM in the manner specified above.

 

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.     Respondents shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights are transferred. Respondents 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 Respondents pursuant to this Agreed Order, shall not in any way relieve Respondents of their obligation to comply with the requirements of their applicable permits or any applicable Federal or State law or regulation.

 

16.     Complainant does not, by his approval of this Agreed Order, warrant or aver in any manner that Respondents’ 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 Respondents may incur as a result of Respondents’ 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 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 (US 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 Respondents may incur as a result of such communications with the US EPA or any other agency or entity.

 

19.     This Agreed Order shall remain in effect until Respondents have complied with the terms and conditions of this Agreed Order and IDEM issues a Resolution of Case (close out) letter to Respondents.

 

 

REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.

 

TECHNICAL RECOMMENDATION:

Department of Environmental Management

RESPONDENTS:

Vernon and Ester Miller d/b/a

Dutch Creek Animal Farm

By:

 

By:

 

 

 

Amari Farren, Chief

Printed:

Vernon Miller

 

Water Enforcement Section

Title:

Owner

 

Compliance and

 

 

Enforcement Branch

 

 

Office of Water Quality

 

 

 

 

 

 

Date:

 

Date:

 

 

 

 

 

 

 

By:

 

 

 

 

 

 

 

Printed:

Ester Miller

 

 

 

Title:

Owner

 

 

 

 

 

 

Date:

 

 

 

 

 

COUNSEL FOR RESPONDENTS:

By:

 

Date:

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

DAY OF

, 20__.

 

For the Commissioner:

 

 

 

Signed on June 11, 2023

 

 

 

Martha Clark Mettler

Assistant Commissioner

Office of Water Quality