STATE OF INDIANA

COUNTY OF MARION

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SS:

BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v.

N. G. Perkins CO., INC.,

Respondent.

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Case No. 2002-12425-W

 

 

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 (“IDEM”), a department of the State of Indiana created by Indiana Code (“IC”) 13-13-1-1.

 

2.      The Respondent is N.G. Perkins Co., Inc. (“Respondent”), which owns and/or develops the Cobblestone Estates Subdivision, Section I, located on the north side of County Road 700 N., just west of County Road 200 W, Greenwood, Johnson County Indiana (the “Site”).

 

3.      The Indiana Department of Environment of Environmental Management has jurisdiction over the parties and subject matter of this action.

 

4.      Pursuant to IC 13-30-3-3, on March 2, 2004, IDEM issued a Notice of Violation via Certified Mail to:

 

N. Gene Perkins, President and Registered Agent

N.G. Perkins Co., Inc.

1521 W. Demaree Road

Greenwood, Indiana 46143

 

5.      Representatives of IDEM conducted an investigation of sanitary sewer construction that occurred at the Site in August 2002.  The investigation revealed the following violations:

 

6.      Pursuant to 327 Indiana Administrative Code (“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 of a water pollution treatment/control facility or sanitary sewer shall not commence until all necessary state approvals and permits are obtained.

 

8.      The Respondent caused or allowed sanitary sewer construction to commence at the Site, without a valid construction permit issued by IDEM, in violation of 327 IAC 3-2-1 and 327 IAC 3-2-2(d).

 

9.      All references in these Findings of Violation to 327 IAC 15-5 and its various subparts are to the version in effect prior to the rule change effective on November 26, 2003.

 

10. Pursuant to 327 IAC 15-2-5(a), any person subject to the requirements of 327 IAC 15 shall submit a Notice of Intent (“NOI”) letter that complies with 327 IAC 15-2-5, 327 IAC 15-3, and the additional requirements in the applicable general permit rule.

 

11. Pursuant to 327 IAC 15-2-5(b), the NOI letter shall be submitted by the time specified under 327 IAC 15-3 or the time indicated in the applicable general permit rule.

 

12. Pursuant to 327 IAC 15-3-3, a NOI letter shall be submitted for construction activity in accordance with 327 IAC 15-5-6.

 

13. Pursuant to 327 IAC 15-5-6, all information required under 327 IAC 15-3 and 327 IAC 15-5-5, specifically a NOI letter and all related information, shall be submitted to the commissioner prior to the initiation of land disturbing activities.

 

14. The Respondent commenced land-disturbing activities at the Site prior to submitting a complete and approvable NOI letter to IDEM, in violation of 327 IAC 15-2-5(b), 327 IAC 15-3-3, and 327 IAC 15-5-6.

 

15. Pursuant to 327 IAC 15-5-7(b), the following requirements shall be met on all sites during the period when active 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.

 

16. 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 shall be maintained by the operator.

 

17. 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:

 

A.                                         that will settle to form putrescent or otherwise objectionable deposits;

B.                                         that are in amounts sufficient to be unsightly or deleterious;

C.                                        that produce color, visible oil sheen, odor, or other conditions in such degree as to create a nuisance;

D.                                        which are in amounts sufficient to be acutely toxic to, or to otherwise severely injure or kill aquatic life, other animals, plants, or humans:

E.                                         which are in concentrations or combinations that will cause or contribute to the growth of aquatic plants or algae to such degree as to create a nuisance, be unsightly, or otherwise impair the designated uses.

 

18.             Pursuant to IC 13-30-2-1(1), a person may not discharge, emit, cause, allow or threaten to discharge, emit, cause, or allow any contaminant or waste, including any noxious odor, either alone or in combination with contaminants from other sources, into the environment in any form that causes or would cause pollution that violates or would violate rules, standards, or discharge or emission requirements adopted by the appropriate board under IC 13.

 

19.             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 IC 13-18-4-1 and IC 13-18-4-3.

 

20.             On-site inspections conducted by representatives of the Indiana Department of Natural Resources (“IDNR”) and the Johnson County Soil and Water Conservation District (“SWCD”) on April 10, 2003, and June 12, 2003, revealed that the Respondent failed to assure that erosion control measures were implemented and maintained at the Site, and failed to assure that off-site sedimentation did not occur during the period of construction activity that commenced on or about October 15, 2001.  Specifically, the on-site evaluations documented that the Respondent failed to adequately protect disturbed areas through seeding; failed to properly install silt fences; failed to install sediment traps such as rock dams or other appropriate erosion and sediment control measures; and failed to prevent and/or minimize sediment from discharging to the ditch, causing sediment to deposit into waters of the state, in violation of 327 IAC 15-5-7(b) and (c), and 327 IAC 2-1-6(a), thus in violation of IC 13-30-2-1 and IC 13-18-4-5.

 

21.             On October 30, 2002, IDEM received an incomplete NOI letter for the Site.  The NOI letter did not include the Respondent's required certification that the information is true, accurate and complete, or the $100 NOI application fee.

 

22.             With regard to the unpermitted sanitary sewer construction, on November 25, 2002, IDEM issued a letter to the Respondent stating that, “Pursuant to IC 13-15 and 327 IAC 3; IDEM cannot issue a construction permit for the subject project.” The letter further stated that, “Cursory review of the plans and specifications” received by IDEM on October 31, 2002 appeared “to be acceptable provided that (1) the separation of sanitary sewers from water mains and drinking water comply with 327 IAC 3-6-9, and (2) if pollution or nuisance conditions are created, immediate corrective action will be taken .”

 

23.             On April 4, 2004, a representative of IDNR conducted an on-site inspection and noted that the previously disturbed portion of the Site was stable at the time of the inspection.  The on-site evaluation noted that land-disturbing activity at the Site is not expected to recommence for several years.

 

24.             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 his 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 the applicable provisions of 327 IAC 3, 327 IAC 15-2, 327 IAC 15-3, 327 IAC 15-5, 327 IAC 2-1-6(a), IC 13-18-4-5, and

            IC 13-30-2-1.

 

3.      The Respondent is assessed a civil penalty of Nine Thousand, Three Hundred Eighty Dollars ($9,380).  Said penalty amount shall be paid in seven monthly payments.  The first payment of One Thousand, Three Hundred Forty Dollars ($1,340) is due and payable to the Environmental Management Special Fund within 30 days of the Effective Date of this Agreed Order.  The remaining six equal payments of One Thousand, Three Hundred Forty Dollars ($1,340) shall be made by the 10th day of each of the following six months.  Interest shall accrue on any amount past due under this schedule or remaining after the seven-month period at a rate established by IC 24-4.6-1-101.

 

4.      The civil penalty is payable by check to the Environmental Management Special Fund.  Payments shall include the Case Number 2002-12425-W, of this action and shall be mailed to:

 

Indiana Department of Environmental Management

Cashiers Office-Mail Code 50 - 10C

100 N. Senate Avenue

Indianapolis, IN 46204-2251

 

5.      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.

 

6.      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.

 

7.      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.

 

8.      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.

 

9.      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.

 

10. This Agreed Order shall remain in effect until the Respondent has complied with Paragraphs 3 through 5 of this Agreed Order and IDEM has issued a close-out letter to the Respondent.

 

 

TECHNICAL RECOMMENDATION:

 

RESPONDENT:

Department of Environmental Management

 

N. G. Perkins Co., Inc.

 

 

 

By:

 

 

By:

 

 

Mark W. Stanifer, Chief

 

Printed:

 

 

Water Enforcement Section

 

Title:

 

 

Office of Enforcement

 

 

 

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

 

, 2007.

 

 

For The Commissioner:

 

 

 

Signed on, January 12, 2007

 

Robert B. Keene

 

Assistant Commissioner

 

Office of Legal Counsel and Enforcement