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. 2001-11176-W
)
DUKE CONSTRUCTION LIMITED )
PARTNERSHIP, )
)
Respondent. )
AGREED ORDER
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.
I. FINDINGS OF FACT
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 Respondent is Duke Construction Limited Partnership ("Respondent"), which is a domestic limited partnership, having its main business office located at 600 East 96th Street, Suite 100, in Indianapolis, Indiana. The Respondent is developing a project known as the Daum Property, Lot 2, approximately 0.25 mile east of State Road 267 between Stafford and Stanley Roads, in Plainfield, Hendricks County, Indiana ("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, IDEM issued a Notice of Violation via Certified Mail to:
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Duke Realty Services Limited Partnership, General Partner Duke Construction Limited Partnership 600 East 96th Street, Suite 100 Indianapolis, Indiana 46240 |
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and |
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CT Corporation System, Registered Agent Duke Construction Limited Partnership 36 South Pennsylvania Street Indianapolis, Indiana 46204 |
5. Inspection and records reviews, from September 27, 2001, through October 23, 2002, were conducted by representatives of IDEM's Office of Enforcement, the Indiana Department of Natural Resources' ("IDNR's") Division of Soil Conservation, and the Hendricks County Soil and Water Conservation District ("SWCD"). The following violations were in existence or observed at the time of these inspections and records reviews:
A. Pursuant to 327 Indiana Administrative Code ("IAC") 15-5-7(a), the operator shall develop an erosion control plan (also known as an "erosion and sediment control plan" or "ESCP") in accordance with the requirements under 327 IAC 15-5-7.
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 established by the department in guidance documents similar to, or as effective as, those outlined in the Indiana Stormwater Quality Manual (formerly titled Indiana Handbook for Erosion Control in Developing Areas) from the Division of Soil Conservation, Indiana Department of Natural Resources ("IDNR"), and the Field Office Technical Guide from the Natural Resources Conservation Service ("NRCS").
The Respondent failed to develop an ESCP for the Site that met the design criteria, standards, and specifications for erosion control established by the department in guidance documents similar to, or as effective as, those outlined in the Indiana Stormwater Quality Manual or the Field Office Technical Guide prior to initiating land disturbing activities on or about September 27, 2001, in violation of 327 IAC 15-5-7(a) and 327 IAC 15-5-7(d).
B. Pursuant to 327 IAC 15-5-7(b), certain requirements shall be met on all sites during the period when active land disturbing activities occur, including, but not limited to, the following:
1. Sediment-laden water shall be detained on-site by erosion control practices that minimize sedimentation in the receiving stream.
2. Public and private roadways shall be kept clear of accumulated sediment.
3. Run-off from a disturbed area shall be controlled by either appropriate vegetative practices, the implementation of an erosion control plan that includes appropriate erosion control measures, or both.
Pursuant to 327 IAC 15-5-7(c), during the period of construction at a site, all erosion control measures necessary to meet the requirements of 327 IAC 15-5-7 shall be maintained by the operator.
The Respondent failed to implement and maintain erosion control measures at the Site necessary to satisfy the requirements of 327 IAC 15-5-7. Specifically, the Respondent failed to do each of the following, as observed and documented by IDNR and/or the Hendricks County SWCD on the listed dates, in violation of 327 IAC 15-5-7(b) and 327 IAC 15-5-7(c):
1. adequately protect disturbed areas through seeding or other appropriate sediment control practices on October 17 and November 5, 2001; and April 9 and October 23, 2002;
2. implement appropriate perimeter sediment control on September 27, October 17 and November 5, 2001; and April 9, October 7, and October 23, 2002;
3. adequately stabilized or protect conveyance channels and/or outlets on September 27, October 17, November 5, and November 27, 2001; and April 9, October 7, and October 23, 2002;
4. properly install and/or maintain erosion control and sediment control measures on September 27, October 17, and November 27, 2001; and April 9, October 7, and October 23, 2002;
5. keep public and private roadways clear of accumulated sediment or tracked soil on September 27, 2001; and
6. retain sediment on site on October 17, 2001, and October 23, 2002.
C. Pursuant to 327 IAC 5-2-2, any discharge of pollutants into waters of the state as a point source discharge, except for exclusions made in 327 IAC 5-2-4, is prohibited unless in conformity with a valid NPDES permit obtained prior to the discharge.
The Respondent discharged sediment-laden water to Rodgers Creek by pumping from a partially-constructed detention pond to the creek, as observed and documented by IDNR on October 17, 2001, in violation of 327 IAC 5-2-2.
D. Pursuant to 327 IAC 2-1-6(a), all waters at all times and at all places, including the mixing zone, shall meet the minimum conditions of being free from substances, materials, floating debris, oil, or scum attributable to municipal, industrial, agricultural, and other land use practices, or other discharges:
1. that will settle to form putrescent or otherwise objectionable deposits;
2. that are in amounts sufficient to be unsightly or deleterious; and
3. that produce color, visible oil sheen, odor, or other conditions in such degree as to create a nuisance;
Pursuant to Indiana Code ("IC") 13-18-4-5, it is unlawful for any person to throw, run, drain, or otherwise dispose into any of the streams or waters of Indiana; or cause, permit, or suffer to be thrown, run, drained, allowed to seep, or otherwise disposed into any waters; any organic or inorganic matter that causes or contributes to a polluted condition of any waters, as determined by a rule of the board adopted under IC 13-18-4-1 and IC 13-18-4-3.
Pursuant to IC 13-30-2-1, no person may discharge, emit, cause, allow, or threaten to discharge emit, cause, or allow any contaminant or waste including any noxious odor, either alone of in combination with contaminants from other sources, into the environment or into any publicly owned treatment works in any form which causes or would cause pollution which violates rules, standards, or discharged or emission requirements adopted by the appropriate board pursuant to this title.
The Respondent caused and/or contributed to the contamination of waters of the state in violation of 327 IAC 2-1-6(a), as follows:
1. by pumping into Rodgers Creek, which is considered a water of the state, sediment-laden water that was unsightly, discolored the creek water, and deposited sediment in the creek, as observed and documented by IDNR on October 17, 2001; and
2. by allowing sediment to leave the site that increased the size of sediment deposits in Rodgers Creek under the Stanley Road bridge, as observed and documented by IDNR on October 23, 2002.
Furthermore, the Respondent's violations of 327 IAC 2-1-6(a), a rule of the board adopted under IC 13-18-4-1 and IC 13-18-4-3, are also in violation of IC 13-18-4-5 and IC 13-30-2-1.
6. On July 27, 2001, IDNR reviewed an ESCP submitted by the Respondent for the relocation of Rogers Creek at the Site and determined that it did not satisfy the minimum requirements and intent of 327 IAC 15-5.
7. On September 5, 2001, IDNR reviewed an ESCP submitted by the Respondent for the rough grading at the Site and determined that it did not satisfy the minimum requirements and intent of 327 IAC 15-5.
8. On September 20, 2001, IDEM received from the Respondent an NOI letter for the construction project at the Site.
9. On September 27, 2001, IDNR inspected the Site. The following items were noted as being unsatisfactory:
A. disturbed areas were not being adequately protected by seeding or other appropriate erosion and sediment control measures;
B. appropriate perimeter sediment control measures had not been implemented;
C. conveyance channels had not been stabilized or protected with appropriate sediment control measures;
D. erosion and sediment control measures had not been properly installed;
E. existing erosion and sediment control measures were not being maintained; and
F. roadways were not being kept clear of accumulated sediment and tracked soil.
Furthermore, it was noted that the Site presented a high potential for off-site sedimentation.
10. On October 1, 2001, IDEM issued to the Respondent a Notice of Sufficiency stating that the NOI letter submitted by the Respondent was sufficient to comply with the NOI letter requirements of 327 IAC 15-5.
11. On October 2, 2001, IDNR issued to the Respondent a Warning of Noncompliance ("WONC") that cited the Respondent's failure to have an approved ESCP prior to beginning land disturbing activities and the deficiencies noted during the September 27, 2001, inspection.
12. On October 10, 2001, IDNR reviewed a revised ESCP submitted by the Respondent for the rough grading at the Site and determined that it did not satisfy the minimum requirements and intent of 327 IAC 15-5.
13. On October 17, 2001, IDNR inspected the Site. The following items were noted as being unsatisfactory:
A. disturbed areas were not being adequately protected by seeding or other appropriate erosion and sediment control measures;
B. appropriate perimeter sediment control measures had not been implemented;
C. erosion and sediment control measures had not been properly installed;
D. outlets were not adequately stabilized;
E. existing erosion and sediment control measures were not being maintained; and
F. sediment-laden water was being pumped into Rodgers Creek which was discoloring the water downstream of the outlet and depositing sediment under the bridge at Stanley Road.
Furthermore, it was noted that the Site presented a high potential for additional off-site sedimentation.
14. On November 1, 2001, IDNR reviewed a revised ESCP submitted by the Respondent for the relocation of Rogers Creek at the Site and determined that it satisfied the minimum requirements and intent of 327 IAC 15-5.
15. On November 5, 2001, IDNR inspected the Site. The following items were noted as being unsatisfactory:
A. disturbed areas were not being adequately protected by seeding or other appropriate erosion and sediment control measures;
B. appropriate perimeter sediment control measures had not been implemented;
C. conveyance channels had not been stabilized or protected with appropriate sediment control measures;
D. erosion and sediment control measures had not been properly installed;
E. outlets were not adequately stabilized; and
F. existing erosion and sediment control measures were not being maintained.
Furthermore, it was noted that the Site presented a high potential for off-site sedimentation.
16. On November 27, 2001, IDNR inspected the Site. The following items were noted as being unsatisfactory:
A. conveyance channels had not been stabilized or protected with appropriate sediment control measures;
B. erosion and sediment control measures had not been properly installed; and
C. storm drain outlets had not been adequately protected.
Furthermore, it was noted that the Site presented a high potential for off-site sedimentation.
17. On November 28, 2001, IDNR reviewed a revised ESCP submitted by the Respondent for the rough grading at the Site and determined that it satisfied the minimum requirements and intent of 327 IAC 15-5.
18. On January 4, 2002, IDNR reviewed a revised ESCP submitted by the Respondent for the rough grading at the Site and determined that it satisfied the minimum requirements and intent of 327 IAC 15-5.
19. On April 9, 2002, IDNR inspected the Site. The following items were noted as being unsatisfactory:
A. disturbed areas were not being adequately protected by seeding or other appropriate erosion and sediment control measures;
B. appropriate perimeter sediment control measures had not been implemented;
C. conveyance channels had not been stabilized or protected with appropriate sediment control measures;
D. erosion and sediment control measures had not been properly installed; and
E. the coir blanket along the banks of the relocated Rodgers Creek on the east side of the Site had sporadic sediment deposits.
20. On April 30, 2002 IDEM, IDNR, and the Hendricks County SWCD jointly inspected the Site. IDNR stated that there was no change in site conditions from the April 9, 2002, inspection.
21. On October 7, 2002, the Hendricks County SWCD inspected the Site. The following items were noted as being unsatisfactory:
A. appropriate perimeter sediment control measures had not been implemented;
B. conveyance channels had not been stabilized or protected with appropriate sediment control measures;
C. outlets were not adequately stabilized; and
D. erosion and sediment control measures had not been properly maintained.
Furthermore, it was noted that the Site presented a high potential for off-site sedimentation.
22. On October 23, 2002, the Hendricks County SWCD inspected the Site. The following items were noted as being unsatisfactory:
A. disturbed areas were not being adequately protected by seeding or other appropriate erosion and sediment control measures;
B. appropriate perimeter sediment control measures had not been implemented;
C. conveyance channels had not been stabilized or protected with appropriate sediment control measures;
D. outlets were not adequately stabilized;
E. erosion and sediment control measures had not been properly maintained; and
F. off-site sedimentation had occurred.
Furthermore, it was noted that the Site presented a high potential for additional off-site sedimentation.
23. In recognition of the settlement reached, the 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 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 comply with all applicable provisions of the IC and the IAC, including, but not limited to, IC 13-18-4-5, IC 13-30-2-1, 327 IAC 2-1-6(a), 327 IAC 5-2-2, 327 IAC 15-5-5(4), 327 IAC 15-5-6, and 327 IAC 15-5-7(a), 327 IAC 15-5-7(b), 327 IAC 15-5-7(c), and 327 IAC 15-5-7(d).
3. This Agreed Order shall apply to any and all construction activity at the Site or any property contiguous to the Site performed by or at the request of, the Respondent, the Respondent's agent, or the Respondent's tenants at the Site.
4. Within 10 days of the Effective Date of this Agreed Order, the Respondent shall develop and submit to IDEM for approval a Compliance Plan ("CP") which identifies the actions that Respondent will take to achieve and maintain compliance with the erosion control measure requirements of 327 IAC 15-5-7 at the Site, specifically including the actions the Respondent will take to:
A. Adequately protect disturbed areas.
B. Implement appropriate perimeter sediment control.
C. Stabilize and protect conveyance channels.
D. Ensure that all erosion control measures are properly installed and maintained.
E. Ensure that all outlets are adequately stabilized.
F. Ensure that public and private roadways are kept clear of accumulated sediment and tracked soil.
G. Minimize off-site sedimentation across property boundaries and into waters of the state.
The CP shall include an implementation and completion schedule, including specific milestone dates.
5. The CP required by Section II, Paragraph 4, of this Agreed Order, is subject to IDEM's approval. If IDEM deems the CP inadequate, a revised CP shall be submitted within 15 days of receipt of notice from IDEM of the inadequacies thereof. If, after submission of the first revised CP, IDEM still finds the CP to be inadequate, then IDEM will request further modification of the CP as necessary to meet IDEM’s requirements, and require re-submittal of the CP by a specific date. If the subsequently submitted second revised CP does not meet IDEM’s approval, IDEM will suggest specific modifications to be made to the CP and require re-submittal by a specific date. If, by the specified date, the Respondent does not incorporate the IDEM-suggested modifications into the third revised CP or submit an alternative adequate CP, as reasonably determined by IDEM, the IDEM-suggested modifications will be deemed incorporated into the plan.
6. The Respondent, upon receipt of written notification from IDEM, shall immediately implement the CP and adhere to any milestone dates therein. The approved CP shall be incorporated into the Agreed Order and shall be deemed an enforceable part thereof. Failure to achieve compliance at the conclusion of work under the approved CP will subject Respondent to stipulated penalties as established in Section II, Paragraph 13, of this Agreed Order.
7. During the period this Agreed Order is in effect, the Respondent shall correct all items identified as deficient or unsatisfactory on any future On-Site Evaluation For Erosion and Sediment Control report from either the Hendricks County SWCD or IDNR. Unless written notice otherwise is issued by either the Hendricks County SWCD or IDNR, the Respondent shall make said corrections by the date indicated on the report, or in the event that no time frame is specified, within 10 days after the Respondent's or the Respondent's agent's receipt of the report.
8. The Respondent shall inspect the Site at a minimum frequency of once per week and no later than the end of the next business day after rainfall events to ensure that stabilization measures are intact and maintained. For the purposes of this provision, a "rainfall event" is defined as any precipitation or precipitation runoff event that is equal to or greater than 0.5 inches of precipitation.
9. The Respondent shall, within 24 hours of finding any stabilization deficiencies during any inspection required by Section II, Paragraph 8, of this Agreed Order, correct those deficiencies in accordance with the criteria outlined in IDNR's Indiana Stormwater Quality Manual, NRCS's Field Office Technical Guide, or other IDNR guidance documents similar to, or as effective as, the previously-mentioned documents.
10. The Respondent shall record the inspections conducted in compliance with Section II, Paragraph 8, of this Agreed Order, and their results in a logbook for documentation and review purposes. The information recorded in the logbook shall include, but not be limited to, the date and time of inspection, the results and/or observations found during the inspection, and the date and a description of any corrective measures performed as a result of deficiencies found during the inspection. The logbook shall be made available for review and copying within 48 hours of request from IDEM, IDNR, or the Hendricks County SWCD.
11. All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:
Susan Baker, Enforcement Case Manager
Office of Enforcement
Indiana Department of Environmental Management
100 North Senate Avenue
P.O. Box 6015
Indianapolis, IN 46206-6015
12. The Respondent is assessed a civil penalty of Twenty Thousand, Three Hundred Dollars ($20,300). 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.
13. In the event the terms and conditions of the following Order paragraphs are violated, the Complainant may assess and the Respondent shall pay a stipulated penalty in the following amount:
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Violation |
Penalty |
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Failure to comply with Order Paragraph 4 |
$500 per each item per each week, or part thereof, past the 10-day deadline that the Respondent fails to submit the CP. |
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Failure to comply with Order Paragraph 5 |
$500 per each week, or part thereof, past the 15-day or other specified deadline that the Respondent fails to submit any required revised CP. |
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Failure to comply with Order Paragraph 6 |
$1000 per each week, or part thereof, past any milestone date contained in the approved CP that the Respondent fails to meet. |
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Violation |
Penalty |
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Failure to comply with Order Paragraph 6 (cont.) |
$2500 per each week, or part thereof, past the conclusion of the work outlined in the approved CP the Respondent fails to achieve and maintain compliance with the erosion control measure requirements of 327 IAC 15-5-7. |
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Failure to comply with Order Paragraph 7 |
$500 per each week, or part thereof, past the appropriate deadline that the Respondent fails to correct all deficiencies identified on any future On-Site Evaluation For Erosion and Sediment Control report. |
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Failure to comply with Order Paragraph 8 |
$500 per each required inspection of the stabilization measures taken at the site that the Respondent fails to perform, as determined from the inspection logbook required by Section II, Paragraph 10, of this Agreed Order. |
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Failure to comply with Order Paragraph 9 |
$1000 per each instance that the Respondent fails to implement any required corrective measures within the 24-hour time frame, as determined from the inspection logbook required by Section II, Paragraph 10, of this Agreed Order. |
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Failure to comply with Order Paragraph 10 |
$500 per each instance that the Respondents fail to make available the inspection logbook within 48 hours of request. |
14. Stipulated penalties shall be due and payable within thirty days after the Respondent receives 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 Respondent 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 Respondent's violation of this Agreed Order, or Indiana law, including but not limited to civil penalties pursuant to IC 13-30-4.
15. 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
16. In the event that the civil penalty required by Section II, Paragraph 12, of this Agreed Order, 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.
17. 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 its status or responsibilities under this Agreed Order.
18. 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.
19. 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 any Permit or with any other applicable federal or state law or regulation.
20. 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.
21. This Agreed Order shall remain in effect until the following conditions are met:
A. the Respondent has complied with the terms of Section II, Paragraphs 3 through 16, of this Agreed Order;
B. one of the following has occurred:
1. the Agreed Order has been in effect for either a minimum period of twelve months after the Effective Date of the Agreed Order; or
2. the Respondent has completed all construction at all property for which this Agreed Order applies and has filed the appropriate Notices of Termination ("NOT") for the Site(s); and
C. IDEM has issued a Close-Out letter to the Respondent.
TECHNICAL RECOMMENDATION: RESPONDENT:
Department of Environmental Management Duke Construction Limited Partnership
By: ______________________________ By: ______________________________
Mark W. Stanifer
Section Chief, Water Section Printed: _____________________________
Office of Enforcement
Title: ______________________________
Date: _______________________________ Date: ______________________________
COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:
Department of Environmental Management
By: ______________________________ By: ______________________________
Office of Legal Counsel
Date: ______________________________ Date: ______________________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _______________ DAY OF __________________________, 200___.
For The Commissioner:
Original signed on September 22, 2003, by
Felicia A. Robinson
Deputy Commissioner for Legal Affairs