STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT
) SS: OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION )
COMMISSIONER OF THE DEPARTMENT )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
)
v. ) CASE NO. 2001-10590-W
)
GREENCASTLE COMMUNITY SCHOOL )
CORPORATION, AND )
SKILLMAN CORPORATION, )
)
Respondents. )
AGREED ORDER
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. Pursuant to IC 13-30-3-3, entering into this Agreed Order does not constitute an admission of any violation contained herein.
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 Indiana created by IC 13-13-1-1.
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, on August 6, 2001, IDEM issued a Notice of Violation via Certified Mail to:
Mike Turner, School Superintendent and to: Harold A. Skillman, President
Greencastle Community School Corporation Skillman Corporation
522 Anderson St. 8158 Dean Road
Greencastle, IN 46135 Indianapolis, IN 46240
and to: Michael J. Tapp, Registered Agent
Skillman Corporation
3834 S. Emerson Ave.
Indianapolis, IN 46203
5. On-site evaluations for erosion and sediment control were conducted at the Deer Meadow Primary School (also known as the New Primary School) development project during 2000 and 2001, and a record review has been conducted by representatives of IDEM. The following violations were in existence or observed at the time of these on-site evaluations and record review:
A. Pursuant to 327 IAC 15-5-1, persons who engage in construction activities disturbing five (5) or more acres are required to take necessary actions to reduce pollutants, principally sediment as a result of soil erosion, in storm water discharges into surface waters of the state.
327 IAC 15-5-2(3) applies to all persons who are involved in construction activity, which includes clearing, grading, excavating, and other land disturbing activities, except operations that result in the disturbance of less than five (5) acres of total land area and which are not part of a larger common plan of development or sale, regarding storm water run off associated with construction activity.
The Deer Meadow Primary School (also known as the New Primary School) development project involves construction activity of more than five (5) acres of total land area and therefore is regulated by a general permit pursuant to 327 IAC 15-2-3 and must comply with 327 IAC 15-5.
B. Pursuant to 327 IAC 15-2-5, any person subject to the requirements of this article shall submit a Notice of Intent (NOI) letter by the time specified under 327 IAC 15-3.
Pursuant to 327 IAC 15-5-6, a NOI and additional information shall be submitted to the Commissioner prior to the initiation of land disturbing activities.
Pursuant to 327 IAC 15-5-7, the operator shall develop an erosion control plan. The erosion control plan must assure that erosion control measures are implemented and maintained, and that off-site sedimentation does not occur during the period of construction activity at a site. All erosion control measures
necessary to meet the requirements of this rule shall be maintained by the operator.
Pursuant to 327 IAC 15-5-5, the operator must certify that the erosion control measures in the erosion control plan comply with applicable state, county, or local erosion control requirements; the erosion control measures will be implemented in accordance with the plan; and that an appropriate state, county, or local erosion control authority and the soil and water conservation district office have been sent a copy of the plan for review.
During an inspection conducted by the Putnam County Soil and Water Conservation District (Putnam County SWCD) at the Deer Meadow Primary School (also known as the New Primary School) development project site on June 20, 2000, it was observed that land disturbing activities had been initiated. A record review indicated that a complete erosion control plan for the development had not been submitted to IDNR or the Putnam County SWCD and a NOI letter had not been submitted to IDEM, in violation of 327 IAC 15-2-5, 15-5-5, 15-5-6, and 15-5-7.
The record review indicated that an incomplete erosion control plan for the New Primary School development project was reviewed by the Putnam County SWCD on June 19, 2000. Upon review, the IDNR and the Putnam County SWCD determined that the erosion control plan was incomplete and did not satisfy the minimum requirements and intent of 327 IAC 15-5. Additional information regarding the erosion control plan was submitted July 3, 2000, and upon review, on July 5, 2000, the Putnam County SWCD notified IDEM that the erosion control plan satisfied the minimum requirements and intent of 327 IAC 15-5. The record review indicates that a NOI letter was received by IDEM on June 26, 2000. Both the complete erosion control plan and the NOI letter for project were submitted after the initiation of land disturbing activities in violation of 327 IAC 15-5-6.
C. Pursuant to 327 IAC 15-5-7(b), specific erosion control requirements shall be met on all sites during the period when active land disturbing activities occur. These requirements include minimizing sedimentation in the receiving stream, preventing storm water discharge from the site in a manner causing erosion in the receiving channel at the point of discharge, minimizing sediment from being tracked from a site onto public or private roadways, keeping public or private roadways cleared of accumulated sediment, protecting all on-site storm drain inlets against sedimentation, and controlling stormwater drainage by appropriate erosion and sediment control measures.
Pursuant to 327 IAC 15-5-7(c), during the period of construction activity at a site, all erosion control measures necessary to meet the requirements of the rule shall be maintained by the operator.
Pursuant to 327 IAC 15-5-7(d), all erosion control measures required to comply with this rule shall meet the design criteria, standards, and specifications for erosion control measures established by the department in guidance documents similar to, or as effective as, those outlined in the Indiana Handbook for Erosion Control in Developing Areas from the Division of Soil Conservation, Indiana Department of Natural Resources and the Field Office Technical Guide from the Soil Conservation Service.
Pursuant to 327 IAC 15-5-10(c), if the remaining erosion control measures are not properly maintained by the person operating the property, the commissioner may pursue enforcement against that person for correction of deficiencies under 327 IAC 15-1-4.
During inspections conducted by IDNR and the Putnam County SWCD at the Deer Meadow Primary School (also known as the New Primary School) development project during 2000 and 2001, it was noted that erosion control requirements in accordance with the approved erosion control plan were not met, were being inadequately implemented and maintained, and were not installed according to acceptable standards and specifications, in violation of 327 IAC 15-5-7(b), (c), and (d).
6. In recognition of the settlement reached, Respondents waive 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 her delegate, and has been received by the Respondents. This Agreed Order shall have no force or effect until the Effective Date.
2. Within 7 days of the Effective Date, the Respondents shall implement and initiate maintenance of adequate erosion control measures at project site as specified in the approved erosion control plan and provided by 327 IAC 15-5.
3. The Respondents shall inspect the project site on a weekly basis and after rainfall events to ensure that all erosion and sediment control measures are properly maintained, including removing accumulated sediment from behind silt fences and from storm inlets, assuring that conveyance channels and swales are stabilized, and installing additional erosion control measures if determined necessary. The weekly inspections shall be maintained in a log for documentation and review purposes. These provisions shall remain in effect until the Respondents submit notification of completion of the construction activity as provided by 327 IAC 15-5-11 and IDEM approves the adequacy of the remaining erosion control measures as provided by 327 IAC 15-5-8(b).
4. Respondents are assessed a civil penalty of Five Thousand Nine Hundred Fifty-two Dollars ($5,952). Within thirty (30) days of the Effective Date of the Agreed Order, Respondents shall pay a portion of this penalty in the amount of One Thousand One Hundred Ninety Dollars ($1,190). Said penalty amount shall be due and payable to the Environmental Management Special Fund. In lieu of payment of the remaining civil penalty, Respondents shall perform and complete a Supplemental Environmental Project (SEP). Respondents estimate that this SEP will cost Fifteen Thousand Dollars ($15,000). Within thirty (30) days of completing this SEP, Respondents shall submit written notice and documentation to IDEM which substantiates all actions taken and costs incurred with respect to the SEP. Additionally, within thirty (30) days of completing the SEP, in the event that the cost of the SEP is less than Fourteen Thousand Two Hundred Eighty-six Dollars ($14,286), Respondents shall pay one third of the difference between Fourteen Thousand Two Hundred Eighty-six Dollars ($14,286) and the actual cost of the SEP.
As a Supplemental Environmental Project, Respondents shall complete the Deer Meadow Primary School Outdoor Education Center (Attachment A). Respondents shall implement the SEP in accordance with the timetable included in the Master Plan as outlined in Attachment A, and complete the SEP by no later than December 1, 2004. Implementation of this SEP will provide an outdoor setting in which students can interact with their environment, foster a community partnership with civic groups and local residents in order to complete the desired projects, provide additional wildlife habitat as well as protection for the existing habitat, and ensure that all citizens of the community have access to all the outdoor education habitats.
Beginning 3 months from the Effective Date, and every 3 months thereafter until completion of the SEP, the Respondents shall submit quarterly SEP progress reports to Randy J. Braun, Program Chief, IDNR-Division of Soil Conservation, IGCS, Room W-265, 402 W. Washington Street, Indianapolis, IN 46204-2739, for IDNR's review and comment. Copies of the progress reports shall also be sent to Terry Ressler, Enforcement Case Manager, Office of Enforcement, IDEM, 100 N. Senate Ave., P.O. Box 6015, Indianapolis, IN 46206-6015. Should IDNR have any comments or suggestions for the SEP, IDNR shall send these in writing to the Respondents, and the Respondents will take these comments or suggestions into consideration in the development and implementation of the SEP.
In the event that the Respondents do not complete the SEP by December 1, 2004, the full amount of the civil penalty as stated above, plus interest established by IC 24-4.6-101 on the remaining amount, less the portion of the civil penalty Respondents have already paid, will be due within fifteen (15) days from Respondents' receipt of IDEM's notice to pay. Interest, at the rate established by IC 24-4.6-1-101, shall be calculated on the amount due from the date which is thirty (30) days after the Effective Date of this Agreed Order until the full civil penalty is paid.
5. In the event the following terms and conditions are violated, the Complainant may assess, and the Respondents shall pay, a stipulated penalty in the following amounts:
Violation Penalty
Paragraph 2; $500 per week for failure to timely implement and initiate maintenance of adequate erosion control measures, or to timely install all additional erosion control measures and initiate any additional maintenance procedures that may be included in the approved erosion control plan,
Paragraph 3; $500 per week for failure to inspect project site on a weekly basis and after rainfall events to ensure that all erosion and sediment control measures are properly maintained, including removing accumulated sediment from behind silt fences and from inlets, assuring that conveyance channels and swales are stabilized, and installing additional erosion control measures if determined necessary.
6. Stipulated penalties shall be due and payable within thirty (30) days after 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 Respondents' violation of this Agreed Order, or Indiana law, including but not limited to civil penalties pursuant to IC 13-30-4.
7. 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:
Cashier
Indiana Department of Environmental Management
100 N. Senate Avenue
P. O. Box 7060
Indianapolis, IN 46207-7060
8. In the event that the civil penalty required by paragraph 4 is not paid within thirty (30) days of the Effective Date of this Agreed Order, Respondents shall pay interest on the unpaid balance at the rate established by IC 24-4.6-1-101. The interest shall continue to accrue until the civil penalty is paid in full.
9. This Agreed Order shall apply to and be binding upon the Respondents, their officers, directors, principals, agents, successors, subsidiaries, 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 its status or responsibilities under this Agreed Order.
10. 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.
11. The Respondents shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights to the project 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.
12. This Agreed Order shall remain in effect until Respondents have complied with the requirements of paragraphs 2 through 8 of this Agreed Order and Complainant issues a close-out letter.
TECHNICAL RECOMMENDATION: RESPONDENT:
Department of Environmental Management Greencastle Community School Corporation
By: _________________________ By: _________________________
Mark W. Stanifer, Section Chief
Office of Enforcement Printed: _______________________
Title: ________________________
Date: _______________ Date: _______________
By: _________________________
Printed: _______________________
Title: ________________________
Date: _______________
COUNSEL FOR GREENCASTLE COMMUNITY SCHOOL CORPORATION:
By: ________________________
Date: _______________
COUNSEL FOR COMPLAINANT: RESPONDENT:
Department of Environmental Management The Skillman Corporation
By: _________________________ By: _____________________
Candace T. Vogel
Office of Legal Counsel Printed: _______________________
Department of Environmental Management Title: ________________________
Date: _______________ Date: _______________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _____ DAY OF ____________________, 2002.
For the Commissioner,
__Signed 3/5/02______
Felicia A. Robinson
Deputy Commissioner
for Legal Affairs