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BEFORE
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ENVIRONMENTAL
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COMMISSIONER
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OF
ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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CASE
NO. 2002-12471-W |
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SADDLEBROOK
DEVELOPMENT, INC., |
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Respondent. |
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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.
Complainant is the Commissioner (hereinafter referred to as
“Complainant”) of the Indiana Department of Environmental Management, a
department of the State of
2.
The Respondent is Saddlebrook Development, LLC
(“Respondent”), which owns and operates a residential development company,
having its main business office located at
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
Mr. Derrin Sorenson, Operator |
Mr. John B. Scheumann, Registered Agent |
Saddlebrook Development LLC |
Saddlebrook Development LLC |
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5.
Inspections and a records review were conducted at the Site
by representatives of the Indiana Department of Natural Resources (“IDNR”) and/or
the Tippecanoe County Soil and Water Conservation District (“SWCD”) during the
construction period from
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 Notice of Intent (NOI) letter and all related
information, shall be submitted to the commissioner prior to the initiation of
land disturbing activities. Respondent
failed to submit a NOI letter for Lexington Farms Section 3 prior to initiating
land disturbing activities at the Site on or about
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 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
titled 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 NOI letter must include a written
certification by the operator that the erosion control measures in the ESCP comply
with 327 IAC 15-5-7 and applicable state, county, or local erosion control
requirements; the erosion control measures will be implemented in accordance
with the plan; and that 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.
Respondent failed to submit an ESCP for Lexington Farms Section 3 to IDNR or
the Tippecanoe County SWCD prior to initiating land disturbing activities on or
about April 24, 2002 in violation of 327 IAC 15-5-7(a) and (d), 327 IAC
15-5-5(4), and 327 IAC 15-5-6.
c.
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 shall occur:
i.
Sediment-laden water shall be detained on site by erosion
control practices that minimize sedimentation in the receiving stream.
ii.
Appropriate measures shall be taken to minimize or eliminate
wastes or unused building materials from being carried away from the site by
run-off.
iii.
Sediment tracked from the site onto public or private
roadways shall be minimized.
iv.
Public and private roadways shall be kept clear of
accumulated sediment.
v.
All on-site storm drains shall be protected against
sedimentation by appropriate and acceptable methods.
vi.
Storm water drainage from adjacent areas that naturally
passes 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.
vii.
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.
Based on inspections conducted by IDNR and/or the Tippecanoe County SWCD during
the construction period from December 7, 2001 through August 20, 2002 at
Lexington Farms Section 2, and from April 24, 2002 through August 20, 2002 at
Lexington Farms Section 3, Respondent failed to implement and maintain erosion
control measures at the Site necessary to satisfy the requirements of 327 IAC
15-5. Specifically, 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; keep public
and private roadways clear of accumulated soil or tracked soil; install and maintain erosion
and sediment control measures on individual building lots. Additionally the above-referenced inspections
documented off-site sedimentation that entered an outlet ravine that drains to
Berlowitz Drain which then outlets into Wildcat 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 15-5-7(b) and (c).
6.
On
7.
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.
The Respondent shall, immediately upon the Effective Date,
implement the erosion and sediment control measures contained in the approved
ESCP for the Site and any other erosion and sediment control measures necessary
to:
a.
ensure compliance with the requirements of 327 IAC
b.
prevent sediment from leaving the site and entering or
threatening to enter waters of the state.
This effort should include basin outlets identified in the on-site evaluations
in accordance with the ESCP and the methods outlined in the Indiana Stormwater Quality Manual from
the IDNR, Division of Soil Conservation (DSC).
These measures shall be adequate in size and location to control the
area of run-off and to prevent off-site sedimentation. Respondent will be deemed to have satisfied
the requirements of this paragraph when a designated representative verifies
that adequate vegetative cover has been established and/or that
appropriate erosion control measures have been put into place, and
Respondent has no “unsatisfactory” ratings in inspections from DSC or the local
SWCD for one year, or until the project termination conditions of 327 IAC
15-5-8 have been met at the site and a notice of termination (NOT) has been
submitted and accepted.
4.
The Respondent shall, upon the Effective date, implement a self-monitoring
program as required by 327 IAC 15-5-7(18), including assuring that a trained
individual performs a written evaluation of the project site by the end of the
next business day following each measurable storm event; and at a minimum of
one time per week, in order to determine whether the erosion and sediment
controls are:
a.
properly installed and maintained; and
b.
adequate to ensure compliance with the requirements of 327
IAC 15-5-7 and to prevent sediment from leaving the site and entering or threatening
to enter waters of the state.
For the purposes of this Agreed Order, a “measurable storm event” is
defined as a precipitation event that results in a total measured precipitation
accumulation equal to or greater than 0.5 inches of rainfall.
5.
In the event that deficiencies are found during the
inspections of the Site conducted pursuant to Order Paragraph 4 above, the
Respondent shall immediately take all actions necessary to correct the
deficiencies. Such actions may include,
but are not necessarily limited to, 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.
6.
The Respondent shall maintain records of the inspections
conducted pursuant to Order Paragraph 4 above and corrective actions taken
pursuant to Order Paragraph 5 above. The
records shall include, but not necessarily be limited to:
a.
the date and time of inspection;
b.
the weather conditions at the time of the inspection;
c.
the name of the individual conducting the inspection;
d.
a description of observations made during the inspection,
specifically including a description of any deficiencies that were found; and
e.
a description of the corrective actions taken as a result of
deficiencies found during the inspection.
7.
The Respondent shall make the records required pursuant to
Order Paragraph 6 above available to inspection and copying by representatives
of IDEM, DSC, and the
8.
The Respondent shall, within 15 days of the effective Date,
provide written notification to all parties with access to the Site, including
contractors and subcontractors, of the requirements contained in the approved
ESCP.
9.
The requirements of Paragraphs 3 through 8 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 designated representative approves the adequacy of the
remaining permanent erosion and control measures in accordance with 327 IAC
15-5-8(b).
10.
All submittals required by this Agreed Order, unless notified
otherwise in writing, shall be sent to:
Ms.
Christina Sorensen, Enforcement Case Manager |
Office
of Enforcement – Mail Code 60-02 |
Indiana
Department of Environmental Management |
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11.
The Respondent is assessed a civil penalty of Twenty-one
Thousand Dollars ($21,000). 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.
12.
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:
Order
Paragraph |
Violation |
Penalty |
Paragraph
4 |
Failure
to inspect the Site as required |
$500
per violation |
Paragraph
5 |
Failure
to immediately take all actions necessary to correct deficiencies found
during Site inspections |
$500
per violation |
Paragraph
6 |
Failure
to maintain records as required |
$500
per violation |
Paragraph
7 |
Failure
to maintain required records at the Site or failure to make required records
available to IDEM, DSC, and the |
$500
per violation |
Paragraph
8 |
Failure
to timely submit certification statement and copy of notice provided pursuant
to Order Paragraph 7. |
$250
per week or part thereof late |
13.
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
14.
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:
Indiana
Department of Environmental Management |
Cashiers
Office – Mail Code 50-10C |
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15.
In the event that the civil penalty required by Order Paragraph
11, is not paid within thirty 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.
16.
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.
17.
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.
18.
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.
19.
This Agreed Order is not and shall not be interpreted to be
a permit or a modification of an
existing permit. This Agreed Order, and
IDEM’s review or approval of any submittal made by the Respondent pursuant to
this Agreed Order, shall not in any way relieve the Respondent of his obligation
to comply with the requirements of any applicable permit or order or with any
other applicable federal or state law or regulation.
20.
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
any permit or order or any applicable federal or state law or regulation. Additionally, IDEM or anyone acting on its
behalf shall not be held liable for any costs or penalties the Respondent may
incur as a result of Respondent’s efforts to comply with this Agreed Order.
21.
Nothing in this Agreed Order shall prevent or limit IDEM’s
rights to obtain penalties or injunctive relief under any applicable federal or
state law or regulation, except that IDEM may not seek additional civil
penalties for the violations specified in the Notice of Violation.
22.
Nothing in this Agreed Order shall prevent IDEM or anyone
acting on its behalf from communicating with the United States Environmental
Protection Agency (“EPA”) or any other agency or entity about any matters
relating to this enforcement action.
IDEM or anyone acting on its behalf shall not be held liable for any
costs or penalties the Respondent may incur as a result of such communications
with the EPA or any other agency or entity.
23.
This Agreed Order shall remain in effect until IDEM issues a
Close-Out letter to the Respondent.
TECHNICAL RECOMMENDATION: |
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RESPONDENT: |
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Department of
Environmental Management |
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Saddlebrook Development LLC |
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Mark W. Stanifer, Chief |
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Water Section |
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Derrin Sorenson |
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Office of Enforcement |
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COUNSEL FOR COMPLAINANT: |
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COUNSEL FOR RESPONDENT: |
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Department of
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Office of Legal Counsel |
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Date: |
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APPROVED AND ADOPTED BY
THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT THIS
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For The Commissioner: |
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Signed September 1, 2005 |
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Matthew T. Klein |
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Assistant Commissioner |
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of Compliance and
Enforcement |
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