) SS: OF ENVIRONMENTAL MANAGEMENT

COUNTY OF MARION )

COMMISSIONER OF THE DEPARTMENT )

OF ENVIRONMENTAL MANAGEMENT, )

)

Complainant, )

)

v. ) Case No. 2002-11157-W

)

St. Joe Development Corp, )

)

Respondent. )
 
 

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. Pursuant to IC 13-30-3-3(c), entry into this Agreed Order does not constitute admission of the alleged violations herein. Respondent's entry into this Agreed Order shall not constitute a waiver of any defense legal or equitable which Respondent may have in any future administrative or judicial proceeding.
 
 

1. The Complainant is the Commissioner ("Complainant") of the Indiana Department of Environmental Management, a department of the State of Indiana created by


IC 13-13-1-1.

2. The Respondent is St. Joe Development Corp, ("Respondent"); which owns the sanitary sewer construction project at Jonathan's Landing Subdivision, Section III, (the "Site"). The Site is located at Covington and West County Roads, located in Fort Wayne, Allen County, Indiana. Utility Center, Inc., d/b/a AquaSource ("AquaSource"), Case No. 2002-11485-W, owns and operates the semipublic wastewater treatment plant ("WWTP") and collection system, which services the Site.
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 30, 2002, IDEM issued Notices of Violation ("NOV") via Certified Mail to St. Joe Development Corp and AquaSource as Co-Respondents at the addresses below:

Mr. Jeffrey A. Gilmore, President and Registered Agent St. Joe Development Corp. 7505 Westfield Drive Fort Wayne, Indiana 46818

Mr. Frank A. Hoffman, President Utility Center, Inc. d/b/a AquaSource Cherrington Corporate Center 200 Corporate Center Drive Suite 300 Coraopolis, Pennsylvania 15108

CT Corporation, Registered Agent Utility Center, Inc. d/b/a AquaSource 1 N. Capitol Avenue Indianapolis, Indiana 46204

5. AquaSource has demonstrated to IDEM that it did not cause or contribute to a violation in this case. The NOV previously issued to AquaSource will be dismissed.
6. Pursuant to 327 IAC 3-2-1, no person shall cause or allow the construction, installation, or modification of any water pollution treatment /control facility or sanitary sewer, without a valid construction permit issued by the commissioner.
7. Pursuant to 327 IAC 3-2-2(d), construction shall not commence until all necessary state approvals and permits are obtained.
8. On July 9, 2001, AquaSource on behalf of the Respondent, submitted a construction permit application, including plans and specifications, to IDEM for review and approval of the Site's sanitary sewer system project to connect to AquaSource's WWTP.
9. On July 20, 2001, IDEM sent a notice of deficiency to the Respondent, for the construction permit application. The notice specified that certain items were needed to complete the application and advised that the deficiencies needed to be addressed within 60 days of the date of the July 20, 2001 correspondence or the application would be denied on the basis of incompleteness.
10. On August 20, 2001, IDEM received a request from AquaSource for a waiver of the sewer connection ban, which was then in effect on AquaSource's Bittersweet lift station. The request contained a list of 10 development projects that would contribute wastewater flow through the Bittersweet lift station to AquaSource's WWTP. Included in the sewer ban waiver request was the Respondent's sewer project for the Site.
11. On August 22, 2001, IDEM sent a sewer ban waiver to AquaSource to allow construction of sanitary sewers of 10 development projects, including the Site, that would contribute wastewater flow to the Bittersweet lift station and AquaSource's WWTP.
12. On October 15, 2001, IDEM issued a denial of permit application letter to the Respondent, for the reason that the application was incomplete.
13. On November 15, 2001, IDEM received the resubmitted construction permit application and the information for the Respondent's sanitary sewer construction project that was deficient in the original construction permit application submitted to IDEM on July 9, 2001. The information included a "Certification of Registered Professional Engineer or Land Surveyor Letter" signed by Richard Slayback, Professional Engineer representing the Respondent, dated November 14, 2001, and a "Capacity Certification/Allocation Letter" signed by William Etzler, General Manager of AquaSource, dated November 4, 2001.
14. On December 14, 2001, IDEM issued the sanitary sewer construction permit for the Site, Approval No. 14963.
15. On January 8, 2002, Jeffrey Gilmore, President and Registered Agent for the Respondent informed a representative of IDEM that the construction for the sewer project began on or before February 2001.
16. On September 23, 2002, the Respondent submitted its as-built plans and specifications for approval of its sanitary sewer construction project at the Site, with additional requested information submitted to IDEM on November 15, 2002, November 25, 2002 and December 6, 2002.
17. On January 8, 2003, IDEM issued a "non-objection" letter for the project to the Respondent. According to the "non-objection" letter, the cursory review of the as-built plans indicated that they appeared to be acceptable.
18. The Respondent commenced construction of the sanitary sewer project for the Site prior to obtaining a valid construction permit, in violation of 327 IAC 3-2-1 and 327 IAC 3-2-2(d).
19. In recognition of the settlement reached, the Respondent waives 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 Respondent. This Agreed Order shall have no force or effect until the Effective Date.
2. The Respondent shall maintain compliance with all requirements of 327 IAC 3 and all other applicable rules and statutes.
3. The Respondent is assessed a civil penalty of Five Thousand Dollars ($5,000). Said penalty amount shall be due and payable to the Environmental Management Special Fund within 30 days of the Effective Date of this Agreed Order.
4. In the event that the civil penalty required by Order Paragraph 3, is not paid within 30 days of the Effective Date of this Agreed Order, the Respondent 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. The Respondent's liability for interest due.
5. Civil penalties are payable by check to the Environmental Management Special Fund. Payments shall include the Case Number 2002-11157-W, of this action and shall be mailed to:


Cashier

IDEM

100 N. Senate Avenue

P. O. Box 7060

Indianapolis, Indiana 46207-7060

6. 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 their status or responsibilities under this Agreed Order.
7. 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.
8. This Agreed Order is not and shall not be interpreted to be a Permit, or a modification of an existing Permit, nor shall it in any way relieve the Respondent of its obligation to comply with the requirements of its applicable construction permit or with any other applicable federal or state law or regulation.
9. 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 the Clean Water Act, the Respondent's as-built approval, federal or state law.
10. 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.
11. This Agreed Order shall remain in effect until the Respondent have complied with Paragraphs 3 through 5 of this Agreed Order and IDEM has issued a close-out letter to the Respondent.

COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:

Department of Environmental Management

By: _________________________ By: __________________________

Mary Ann Habeeb, Attorney

Office of Legal Counsel Printed:

Department of Environmental Management

Date: _______________________ Date: ________________________
 
 
 
 
 
 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _____ DAY OF _______________, 2004.
 
 

For the Commissioner:
 
 

 Signed by Felicia A. Robinson on February 2, 2004
 
 

___________________________

Felicia A. Robinson

Deputy Commissioner

for Legal Affairs