) SS: OF ENVIRONMENTAL MANAGEMENT
COMMISSIONER OF THE DEPARTMENT )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
)
v. ) Case No. 2002-12470-W
)
MILLENNIUM PROPERTY MANAGEMENT, )
)
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. Pursuant to IC 13-30-3-3, entry into the terms of this Agreed Order does not constitute an admission of any violation contained herein. The 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, except a proceeding to enforce this Order.
I. FINDINGS
OF FACT
1. Complainant is the Commissioner (“Complainant”)
of the Indiana Department of Environmental Management, a department of the State
of
2.
Respondent is Millennium Property Management (“Respondent”),
which is the owner, operator, and developer of the apartment construction
project known as Adams Bend Apartments located at the southwest corner of the
3. The Indiana Department of Environmental Management ("IDEM") has jurisdiction over the parties and the subject matter of this action.
4.
Pursuant to 327 IAC 13-30-3-3, IDEM issued a Notice of
Violation on
Mr. Michael Pauly
Millennium Property Management
1200 Rolling
5.
Inspections were conducted at the Site by a designated
representative of the Indiana Department of Natural Resources (IDNR) Soil
Conservation District on May 3, May 31, June 19, October 2, and
A. Pursuant to 327 IAC
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.
On
B. Pursuant to 327 IAC
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 (now known as the Indiana Stormwater Quality Manual) from the division of soil conservation, IDNR and the Field Office Technical Guide from the Natural Resources Conservation Service.
Pursuant to 327 IAC 15-5-5(4), the operator must certify that the erosion control measures in the ESCP 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.
On
C.
Pursuant to 327 IAC
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.
Pursuant to 327 IAC
Based on inspections conducted by
IDNR on May 3, May 31, June 19, October 2, and November 6, 2002, Respondent
failed to: adequately protect disturbed areas through seeding or other
appropriate erosion and sediment control measures; implement appropriate
perimeter sediment control measures; properly install erosion and sediment
control measures; adequately stabilize outlets; maintain existing erosion and
sediment control measures. Additionally,
the above-referenced inspections documented off-site sedimentation, in which
sediment left the site via rock dams and entered a tributary of Clear
Creek. The Respondent's failure to
implement and maintain erosion and sediment control measures and the failure to
prevent off-site sedimentation is in violation of 327 IAC
D.
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. Respondent caused or contributed to a
polluted condition of waters of the state by allowing sediment to enter a
tributary of Clear Creek, in violation of IC 13-18-4-5 and 327 IAC
6. In recognition of the settlement reached, 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. Immediately, upon the Effective Date of this Order, the Respondent shall implement and maintain all necessary erosion and sediment control measures to prevent sediment from leaving the site and entering waters of the state.
3. Upon the Effective Date of this Agreed
Order, the Respondent shall inspect the Adams Bend Apartments construction
project at a minimum frequency of twice-per-month and immediately 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 measures 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.
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. The requirements of Paragraphs 2 and 3 above shall remain in effect until the earlier of :
a. Respondent submits notification of
termination of construction activity pursuant to 327 IAC
b. one year has passed from the effective date of this Agreed Order,
and
a representative of IDNR approves the adequacy of the remaining permanent
erosion control measures in accordance with 327 IAC
5. The Respondent is assessed a civil penalty of Thirty-one Thousand Four Hundred Dollars ($31,400). Said penalty amount shall be due and payable to the Environmental Management Special Fund according to the payment schedule as follows:
Payment Due Date Amount
1 month after Effective Date $2,800
2 months after Effective Date $2,600
3 months after Effective Date $2,600
4 months after Effective Date $2,600
5 months after Effective Date $2,600
6 months after Effective Date $2,600
7 months after Effective Date $2,600
8 months after Effective Date $2,600
9 months after Effective Date $2,600
10 months after Effective Date $2,600
11 months after Effective Date $2,600
12 months after Effective Date $2,600
6. 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:
|
Paragraph |
Violation |
Penalty |
|
Order Paragraph 2 |
Failure to install/maintain erosion control measures |
$1,000 per documented event |
|
Order Paragraph 3 |
Failure to conduct and/or document inspections Failure to maintain log |
$500 per documented event |
7.
Stipulated penalties shall be due and payable within 30
days after the Respondent receives written notice that the Complainant has
determined that 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
8. Civil and stipulated penalties are payable to the Environmental Management Special Fund. Payments shall include the Case Number of this action (2002-12470-W) and shall be mailed to:
Cashier
Indiana Department of Environmental Management
9. In the event that the civil penalty required by Order paragraph 5 is not paid according to the payment schedule, 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.
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 complies with the terms of Order paragraph Nos.
2 through 9 and IDEM issues a Resolution of Case letter to Respondent.
TECHNICAL RECOMMENDATION: RESPONDENT:
Department
of Environmental Management
By: _________________________ By: _________________________
Mark W. Stanifer, Chief
Chief, [Section] 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 ____________________, 2004.
For the Commissioner:
Signed August 11, 2004
Felicia A. Robinson
Deputy Commissioner
for Legal Affairs