The Complainant and the 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.

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 Respondents are Ten Pin Alley, Inc. ("Respondent 1"), Case No. 2000-9935-W, and Martin T. O'Brien d/b/a Ten Pin Alley ("Respondent 2"), Case No. 2003-13236-W, (the "Respondents"), which jointly and severally own and operate the Ten Pin Alley public water supply ("PWS") system located at 1733 West Mill Street, in Delphi, Carroll County, Indiana. This is a transient noncommunity PWS system, PWSID Number 2080811, 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 on July 13, 2001, via Certified Mail to:
 

Mr. Fred F. Hegel, President and Registered Agent Ten Pin Alley, Inc. 11016 North Quiet Water Circle Monticello, Indiana 47960-8144

and

Mr. Fred F. Hegel, President and Registered Agent Ten Pin Alley, Inc. 1733 W. Mill Street Delphi, Indiana 46923-8572

5. The Notice of Violation identified the following violations:

A. Pursuant to 327 IAC 8-2-4.1(f), all public water supply systems shall monitor to determine compliance with the maximum contaminant level ("MCL") for nitrate. IDEM records indicate that the Respondents failed to fulfill the annual monitoring requirement for nitrate for the Ten Pin Alley PWS system during 1998, 1999, and 2000, 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 1000 persons, must collect at least one routine total coliform sample each calendar quarter.

C. IDEM records indicate that the Respondents failed to collect at least one routine total coliform sample from the Ten Pin Alley PWS system during the second, third, and fourth quarters of 1998, the first, second, third, and fourth quarters of 1999, and the first, second, third and fourth quarters of 2000, in violation of 327 IAC 8-2-8(c).

Pursuant to 327 IAC 8-2-15(d), the owner or operator of a noncommunity water supply system, which fails to perform monitoring required pursuant to either 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. To properly give public notice (PN) after November 19, 2001, requires that rule 327 IAC 8-2.1-7 be used because it supersedes and replaces rule 327 IAC 8-2-15(d).

IDEM records indicate that the Respondents failed to notify persons served by the Ten Pin Alley PWS system of the failure to perform nitrate monitoring during 1998, 1999, and 2000, and the failure to perform total coliform monitoring during the second, third, and fourth quarters of 1998, the first, second, third, and fourth quarters of 1999, and the first, second, third, and fourth quarters of 2000, in violation of 327 IAC 8-2-15(d).

6. On April 28, 2001, IDEM issued a Warning of Noncompliance letter ("WONC") to Mr. Fred Hegel at Ten Pin Alley, RR2 Box 42A, Delphi, Indiana 46923. The WONC addressed the nitrate monitoring violations during 1997, 1998, and 1999, and the total coliform monitoring violations during the first, second, third and fourth quarters of 1997, the first, second, third and fourth quarters of 1998, and the first, second, third and fourth quarters of 1999. Furthermore, the WONC requested that the recipient provide a written response to IDEM within 14 days of its receipt. IDEM received no response to the WONC.

7. Respondent 2 is added to this Agreed Order in recognition of its role as the operator of, the contractual joint and several owner of, and the prospective buyer of Ten Pin Alley. Respondent 2 waives its right to the issuance of a Notice of Violation for the violations cited herein.

8. A number of additional violations have occurred subsequent to those cited in the July 2001 NOV, including:

• No sampling or PN for either total coliform (4 quarters) or nitrate (annual) were done during 2001.
• During 2002, there were positive bacteriological samples in the months of March, April, May, and July, with an MCL exceedance occurring in March 2002, in violation of 327 IAC 8-2-7.
• Respondents failed to sample for total coliform in the first, third and fourth quarters of 2003.

9. In recognition of the settlement reached, the Respondents waive any right to administrative and judicial review of this Agreed Order.

1. This Agreed Order shall be effective ("Effective Date") when it is approved by the Complainant or her delegate, and has been received by the Respondents. This Agreed Order shall have no force or effect until the Effective Date.

2. The Respondents 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), 327 IAC 8-2-13, and 327 IAC 8-2.1-7.

3. Respondents shall monitor nitrate at the entry point into the PWS system, within 30 days after the Effective Date of this Agreed Order, pursuant to 327 IAC 8-2-4.1(f).

4. For purposes of this Agreed Order, Respondents shall monitor for total coliform in their PWS system, for four consecutive quarters, beginning within 30 days after the Effective Date of this Agreed Order.

5. Within the earlier of either ten days after the Respondents receive any nitrate, or total coliform monitoring results or ten days after the end of the applicable nitrate or total coliform monitoring period, the Respondents shall submit said monitoring results for the Ten Pin Alley PWS system to IDEM's, OWQ's Drinking Water Branch (DWB), pursuant to 327 IAC 8-2-13(a). For the added purpose of complying with this Agreed Order, Respondents also shall, for the first year subsequent to this Order's Effective Date, send to IDEM's Office of Enforcement (OE) a copy of these monitoring results.

6. Within 30 days after the Effective Date of this Agreed Order, the Respondents shall provide public notice for the violations listed in Section I, Paragraphs 5.C. and 8, by following these steps:

(a) Telephone the DWB at 317/308-3286 (or toll free 800/451-6027, extension 308-3286) 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 circumstances and PWS.

(b) Provide the required public notice commensurate with the type, form, manner, frequency, and issuing deadline direction identified in Step (a).

7. In the event that the Respondents fail to complete any PWS monitoring required by this Agreed Order, they shall, give public notice of said failure by following these steps:

(a) Within one business day following the monitoring failure, the Respondents should telephone DWB at 317/308-3286 (or toll free 800/451-6027, extension 308-3286) 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).

8. Pursuant to 327 IAC 8-2-13(d), the Respondents, within ten days of issuing public notice under rules 327 IAC 8-2.1-7, shall submit to the Commissioner (IDEM's OWQ'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, Respondents 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.

9. 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
P.O. Box 7148
Indianapolis, IN 46207-7148.

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

Richard Deitsch, Office of Enforcement
Indiana Department of Environmental Management
100 North Senate Avenue
P.O. Box 6015
Indianapolis, IN 46206-6015.

11. In the event the following terms and conditions of this section are violated, the Complainant may assess and the Respondents shall pay a stipulated penalty in the following amounts:
 

Paragraph	Violation	Penalty
Order Paragraph 3	Failure to monitor for nitrate within stated deadline.	$1,000 per sample missed.
Order Paragraph 4	Failure to monitor for total coliform for four consecutive quarters, beginning within 30 days after the Effective Date.	$500 per sample missed.
Order Paragraph 5	Failure to report monitoring results to IDEM within the earlier of ten days after receiving the nitrate or total coliform monitoring results, or ten days after the end of the applicable nitrate or total coliform monitoring period.	$100 per each week, or part thereof, past the applicable 10-day deadline, for failure to report.
Order Paragraph 6	Failure to provide public notice for the monitoring violations listed in Section I, Paragraphs 5.C and 8.	$250 per each week, or part thereof, past the 30-day deadline.
Order Paragraph 7	Failure to provide public notice for monitoring violations of this Agreed Order.	$250 per each week, or part thereof, past the DWB direction deadline.
Paragraph	Violation	Penalty
Order Paragraph 8	Failure to send to IDEM within 10days 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.

12. Stipulated penalties shall be due and payable within 30 days after the Respondents receive 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 Respondents 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 Respondents' violation of this Agreed Order, or Indiana law, including but not limited to civil penalties pursuant to IC 13-30-4.

13. Stipulated penalties are payable by check to the Environmental Management Special Fund. Checks shall include the Case Numbers of this action and shall be mailed to:

Cashier
Indiana Department of Environmental Management
100 N. Senate Avenue
P. O. Box 7060
Indianapolis, IN 46207-7060

14. This Agreed Order shall apply to and be binding upon the Respondents, their successors, and assigns. The Respondents' 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 Respondents shall in any way alter their status or responsibilities under this Agreed Order.

15. 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.

16. The Respondents shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights are transferred. The Respondents shall ensure that all contractors, firms and other persons performing work under this Agreed Order comply with the terms of this Agreed Order.

17. The provisions of this Agreed Order do not in any way relieve the Respondents of their obligation to comply with applicable Federal or State law or regulation.

18. This Agreed Order shall remain in effect until the Respondents have complied with the terms and conditions of Paragraphs 3 through 13 of this section of the Agreed Order and until IDEM issues a Close-Out letter to the Respondents.

TECHNICAL RECOMMENDATION:                                             RESPONDENT 1:

Department of Environmental Management                                             Ten Pin Alley, Inc.
By: ______________________________                                             By: ______________________________

Mark W. Stanifer
Section Chief, Water Section                                                                     Printed:______________________________
Office of Enforcement
                                                                                                                Title: ______________________________

Date: _______________________________                                         Date: ______________________________

                                                                                                                RESPONDENT 2:

                                                                                                                Martin T. O'Brien, d/b/a Ten Pin Alley
                                                                                                                By: ______________________________

                                                                                                                Printed:______________________________

                                                                                                                Title: ______________________________

                                                                                                                Date: ______________________________

COUNSEL FOR COMPLAINANT:                                                 COUNSEL FOR RESPONDENT 1:

Department of Environmental Management                                             Ten Pin Alley, Inc.

By: ______________________________                                             By: ______________________________

Office of Legal Counsel

Printed: ______________________________

Date: ______________________________                                         Date: ______________________________

                                                                                                            COUNSEL FOR RESPONDENT 2:

                                                                                                            Martin T. O'Brien

                                                                                                            By: ______________________________

                                                                                                            Printed: ______________________________

                                                                                                            Date: ______________________________

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS ________________ DAY OF ____________________________, 2004.

For The Commissioner:

Original Signed March 23, 2004

Felicia A. Robinson
Deputy Commissioner for Legal Affairs