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. 2003-13429-W
					)
WININGER/STOLBERG GROUP, INC.,					)
D/B/A COTTAGES OF BRIGHTON POINT,					)
					)
	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.

2. Respondent is Wininger/Stolberg Group, Inc., (“Respondent”), developer of The Cottages of Brighton Point, located southwest of the intersection of Smith Road and Brighton Avenue in the City of Bloomington, Monroe County, Indiana (the “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:

Mr. H. Timothy Wininger, Sr., President	Mr. James Bohrer, Registered Agent
Wininger/Stolberg Group, Inc.	1011 North Walnut Street
501 Woodcrest	Bloomington, IN 47402
Greenwood, IN 47401

5. Pursuant to 327 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 this section. The ESCP must assure that erosion control measures are implemented and maintained, and that off-site sedimentation does not occur during the period of construction activity at a site.

6. 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 Resource Conservation Service.

7. 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.

8. 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:

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

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

c. Sediment tracked from the site onto public or private roadways shall be minimized.

d. Public and private roadways shall be kept clear of accumulated sediment.

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

f. 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.

g. 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.

9. 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.

10. Based on site visits and inspections conducted by IDNR, the Respondent failed to assure that erosion control measures were implemented and maintained at the Site from October 15, 2001 to September 30, 2003, and assure that off-site sedimentation did not occur during the period of construction activity. Specifically, it was observed that disturbed areas have not been adequately protected through seeding or other appropriate erosion and sediment control measures, storm drains and inlets have been inadequately protected, existing erosion control measures have not been adequately installed and maintained, sediment was found on the road sides, and the site conditions resulted in off-site sedimentation to Jackson Creek, in violation of 327 IAC 15-5-7(a), (b), (c), and (d). and 327 IAC 15-5-5(4).

11. A settlement conference was held on June 29, 2004 at which it was determined that a six acre portion of the project that the Respondent used as a soil storage area was later developed by the Respondent as a separate project called Spring Hill at Brighton Point. A NOI was submitted for this new project on November 8, 2002, however no ESCP was ever approved for it. Rather than initiate a new enforcement action for violation of 327 IAC 15-5-7 (a) and (d), and 327 IAC 15-5-4 at the Spring Hill site, it was determined to incorporate the violation into the current enforcement action.

12. 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 maintain compliance with the applicable provisions of 327 IAC 15-5-5(4), and 327 IAC 15-5-7.

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 15-5-7; and

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 Handbook for Erosion Control in Developing Areas (now known as the Indiana Stormwater Quality Manual) from the IDNR, Division of Soil Conservation. 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 IDNR 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 IDNR or the local SWCD for one year.

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.

5. 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.

6. 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.

7. The Respondent shall maintain records of the inspections conducted pursuant to Order Paragraph 4 above and corrective actions taken pursuant to Order Paragraph 6 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.

8. The Respondent shall maintain the records required pursuant to Order Paragraph 7 above at the Site, and shall make such records available for inspection and copying by representatives of IDEM, IDNR, and the Monroe County SWCD.

9. 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.

10. The Respondent shall, within 30 days of the Effective Date, submit to IDEM a copy of the notification required pursuant to Order Paragraph 9 above and a statement certifying that the notification was provided to all parties with access to the Site.

11. The requirements of Paragraphs 2 through 8 above shall remain in effect until the earlier of :

a. Respondent submits notification of termination of construction activity pursuant to 327 IAC 15-5-11 for the Site, or

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 15-5-8(b).

12. All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:

Dave Knox, Enforcement Case Manager

Water Enforcement Section

Office of Enforcement

Indiana Department of Environmental Management

North Senate Avenue

P. O. Box 6015

Indianapolis, IN 46206-6015

13. Respondent is assessed a civil penalty of Twelve Thousand Seven Hundred Fifty Dollars ($12,750). Said civil penalty amount shall be due and payable to the Environmental Management Special Fund within 30 days of the Effective Date of this Agreed Order.

14. 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:

Order Paragraph	Violation	Penalty
Paragraph 3	Failure to implement the erosion and sediment control measures contained in the approved ESCP and any other erosion and sediment control measures necessary to comply with the requirements of Paragraph 3	$500 per violation
Paragraph 4	Failure to inspect the Site as required	$500 per violation
Paragraph 6	Failure to immediately take all actions necessary to correct deficiencies found during Site inspections	$500 per violation
Paragraph 7	Failure to maintain records as required	$500 per violation
Paragraph 8	Failure to maintain required records at the Site, or failure to make required records available to IDEM, IDNR, and the Monroe County SWCD	$500 per violation
Paragraphs 9, 10	Failure to timely submit certification statement and copy of notice provided pursuant to Order Paragraphs 9, 10	$250 per week or part thereof late

15. Stipulated penalties shall be due and payable within 30 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.

16. Civil and stipulated penalties are payable by check to the Environmental Management Special Fund. Payments shall include the Case Number (2003-13429-W) of this action and shall be mailed to:

Cashier

IDEM

100 N. Senate Avenue

P. O. Box 7060

Indianapolis, IN 46207-7060

17. In the event that the civil penalty required by Order Paragraph 13 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.

18. This Agreed Order does not, in any way, relieve the Respondent of its obligation to comply with the applicable requirements of federal or state law or regulation.

19. 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 applicable requirements of federal or state law or regulation.

20. his 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.

21. 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.

22. The Respondent shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights are persons performing work under this Agreed Order comply with the terms of this Agreed Order.

23. This Agreed Order shall remain in effect until the Respondent has complied with Order Paragraphs 3 through 17 of this Agreed Order and IDEM has issued a close-out letter to the Respondent.

TECHNICAL RECOMMENDATION:		RESPONDENT:
Department of Environmental Management
By:	_____________________________	By:	______________________________
	Mark W. Stanifer	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 _______________, 2004.

For the Commissioner:

Signed on 12/14/04___

Felicia A. Robinson

Deputy Commissioner

for Legal Affairs