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. 2002-11323-W

)

MOORESVILLE PARTNERS AT FIELDS )

CROSSING, LLC )

)

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 ("Complainant") of the Indiana Department of Environmental Management, a department of the State of Indiana created by

IC 13-13-1-1.

  1. Respondent is Mooresville Partners at Fields Crossing, LLC ("Respondent"), who owns and operates the Fields Crossing commercial subdivision, located at the southwest corner of Bridge Street and State Road 67 in Mooresville, in Morgan County, Indiana (the Site). While the Notice of Violation issued for this case indicated that Olympia Partners, LTD, was the responsible party, during subsequent settlement discussions it was determined that Mooresville Partners at Fields Crossing, LLC, is the developer of the Site and is the responsible party.
  2. The Indiana Department of Environmental Management ("IDEM") has jurisdiction over the parties and subject matter of this action.
  3. Pursuant to IC 13-30-3-3, on April 16, 2002, IDEM issued a Notice of Violation via Certified Mail to:

Charles A. Augustin, Jr., President and to: Bruce E. Smith, Registered Agent

Olympia Partners, LTD. Olympia Partners, LTD.

320 N. Meridian St., Suite 700 50 S. Meridian St., Suite 700

Indianapolis, IN 46204 Indianapolis, IN 46204

5. Pursuant to 327 IAC 15-5-7(b), the following requirements for erosion control measures shall be met on the Site during the period when land disturbing activities occur:

(1) Sediment-laden water shall be detained on-site by erosion control practices that minimize sedimentation in the receiving stream.

(2) Appropriate measures shall be taken to minimize or eliminate wastes or unused building materials being carried from the site by run-off.

(3) Sediment tracked from the site onto public or private roadways shall be minimized.

(4) Public and private roadways shall be kept clear of accumulated sediment.

(5) All on-site storm drains shall be protected against sedimentation by appropriate and acceptable methods.

(6) Storm water drainage from adjacent areas that naturally pass through the site shall either be diverted from disturbed areas or the existing channel must be protected or improved to prevent erosion and sedimentation from occurring.

(7) 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.

6. Pursuant to 327 IAC 15-5-7(c), during the period of construction at the Site, all erosion control measures necessary to meet the requirements of this rule shall be maintained by the operator.

7. Based on site visits and inspections conducted by IDNR and the Morgan County SWCD, the Respondent failed to assure that erosion control measures were implemented and maintained at the Site from January 9, 2001, to February 19, 2002, and failed to assure that off-site sedimentation did not occur during the period of construction activity as observed during inspections conducted on August 24, 2001, September 6, 2001, November 30, 2001, and February 19, 2002. Specifically, the following violations of 327 IAC 15-5-7(b) and (c) were in existence at the time of the site visits/inspections:

(1) Sediment-laden water was not detained on-site by erosion control practices that minimize sedimentation in the receiving stream, and appropriate measures were not taken to minimize or eliminate wastes or unused building materials being carried from the site by run-off, as noted during inspections conducted on January 9, 2001, January 31, 2001, May 18, 2001, July 2, 2001, August 24, 2001, September 6, 2001, November 30, 2001, and February 19, 2002.

(2) Sediment tracked from the site onto public or private roadways was not minimized, and public and private roadways were not kept clear of accumulated sediment, as noted during inspections conducted on July 2, 2001, and November 30, 2001.

(3) All on-site storm drains were not protected against sedimentation by appropriate and acceptable methods, as noted during inspections conducted on January 31, 2001, July 2, 2001, August 24, 2001, and November 30, 2001.

(4) Run-off from the disturbed area was not controlled by either appropriate vegetative practices, the implementation of an erosion control plan that includes appropriate erosion control measures, or both, as noted during inspections conducted on January 9, 2001, January 31, 2001, August 24, 2001, September 6, 2001, November 30, 2001, and February 19, 2002.

(5) During the period of construction at the Site, all erosion control measures necessary to meet the requirements of this rule were not maintained by the operator, as noted during inspections conducted on January 9, 2001, January 31, 2001, July 2, 2001, August 24, 2001, September 6, 2001, November 30, 2001, and February 19, 2002.

8. Pursuant to 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 sections 1 and 3 of this chapter.

9. The Respondent caused or contributed to a polluted condition of waters of the state by causing the discharge of sediment from the Site into waters of Indiana as noted during inspections conducted on August 24, 2001, September 6, 2001, November 30, 2001, and February 19, 2002, in violation of IC 13-18-4-5.

10. An inspection conducted by IDNR and Morgan County SWCD staff on June 7, 2002 indicated that the site had been brought into compliance with the provisions of 327 IAC 15-5.

11. 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 327 IAC 15-5, including assuring that all necessary erosion and sediment control measures are implemented to prevent sediment from leaving the site and entering the waters of the state.
  3. Beginning upon the Effective Date of this Order, and lasting until one year after the Effective Date, the Respondent shall inspect the Fields Crossing commercial subdivision construction project at a minimum frequency of twice-per-month and after rainfall events to ensure that all erosion and sediment control measures are properly installed and maintained, and in the event that deficiencies are found, shall implement corrective measures. Corrective measure may involve, for example, removal of accumulated sediment from behind silt fences and storm inlets, assurance that conveyance channels and swales are stabilized, and installation of additional erosion control measures if determined necessary.

    4. The inspections and their results shall be documented in a log maintained for documentation and review purposes. Information in the log shall include, but not be limited to, the date and time of inspection, results/observations found during the inspection, and any corrective measures conducted as a result of deficiencies found during the inspection. The log shall be maintained on site so that it is available for review. 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 0.1 inches of precipitation. This requirement will remain in effect for the term of this Agreed Order.

  4. Respondent is assessed a civil penalty of Eight Thousand Four Hundred Dollars ($8,400). Said penalty amount shall be due and payable to the Environmental Management Special Fund within thirty days of the Effective Date of this Agreed Order.
  5. In the event the terms and conditions of the following paragraphs are violated, the Complainant may assess and the Respondent shall pay a stipulated penalty in the following amount:

    6. Order Paragraph Number

    Violation

    Penalty Amount

    2 & 3

    Failure to implement adequate erosion and sediment control measures, failure to ensure that all erosion and sediment control measures are properly installed and maintained and in the event that deficiencies are found, implement corrective measures, and/or failure to inspect the site and document an inspection as required.

    $500 per each week
  6. Stipulated penalties shall be due and payable within thirty days after 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 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. Payments shall include the Case Number of this action and shall be mailed to:

    8. Cashier

    IDEM

    100 N. Senate Avenue

    P. O. Box 7060

    Indianapolis, IN 46207-7060

  8. In the event that the civil penalty required by Order paragraph 4, is not paid within thirty days of the Effective Date of this Agreed Order, 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.
  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, its general stormwater permit, federal or state law.
  10. 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.
  11. 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.
  12. The Respondent shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights are transferred. Respondent shall ensure that all contractors, firms and other persons performing work under this Agreed Order comply with the terms of this Agreed Order.
  13. This Agreed Order shall remain in effect until Respondent has complied with paragraphs 2 through 8 of this Agreed Order and IDEM has issued a close out letter to the Respondent.

 

TECHNICAL RECOMMENDATION: RESPONDENT:

Department of Environmental Management Mooresville Partners at Fields Crossing LLC

By: _________________________ By: _________________________

Mark W. Stanifer, Chief

Water Enforcement Section Printed: ______________________

Office of Enforcement

Title: ________________________

Date: ________________________ Date: ________________________

 

COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:

Department of Environmental Management

By: _________________________ By: ________________________

Michael Byron, Attorney

Office of Legal Counsel

The Department of Environmental Management

Date: _______________________ Date: ______________________

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _____ DAY OF _______________, 2002.

 

For the Commissioner:

 

 

__Signed 1/14/03______

Felicia A. Robinson

Deputy Commissioner

for Legal Affairs