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. 2004-13914-W
					)
WININGER/STOLBERG LAND HOLDINGS, INC.,					)
and WININGER STOLBERG GROUP,					)
					)
	Respondents.				)

AGREED ORDER

The Complainant and the Respondents 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. Respondents are Wininger/Stolberg Land Holdings, Inc. and Wininger Stolberg Group (Respondents), who own and operate a subdivision under construction known as Ravenwood Subdivision (also known as Jackson Mill Subdivision) located on the west side of Sare Road between Rhorer Road and Rogers Road, Bloomington, in 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, on May 19, 2004, IDEM issued a Notice of Violation via Certified Mail to:

Wininger/Stolberg Land Holdings, Inc.	Wininger Stolberg Group
April R. Schilling, Registered Agent and	Tim Hanson, Construction Manager
Incorporator	1128 S. College Mall Road
201 N. Illinois St. Suite 1000	Bloomington, IN 47401
P.O. Box 44961
Indianapolis, IN 46244

5. Pursuant to 327 IAC 15-5-7(b), both before and after its November of 2003 revisions, 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 from 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) 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), as effective prior to November of 2003, 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. The Respondents submitted the Notice of Intent (NOI) prior to November of 2003, and have not submitted another NOI for the Site. Therefore the above noted provisions remain in effect.

Based on site visits and inspections conducted by the Indiana Department of Natural Resources (IDNR) and the Monroe County Soil and Water Conservation District (SWCD), the Respondents failed to implement and maintain erosion control measures at the Site necessary to satisfy the requirements of 327 IAC 15-5 during the period of construction activity from August 4, 2003 to December 3, 2003. Specifically:

(1) Sediment-laden water was not detained on site by erosion control practices that minimize sedimentation in the receiving stream. Appropriate measures were not taken to minimize or eliminate wastes or unused building materials from being carried from the site by run-off. Additionally, run-off from a 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. These violations were documented during inspections conducted on August 4, 2003, September 30, 2003, October 31, 2003, and December 3, 2003.

(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 documented during inspections conducted on August 4, 2003, September 30, 2003, and October 31, 2003.

(3) All on-site storm drains were not protected against sedimentation by appropriate and acceptable methods, as documented during inspections conducted on August 4, 2003, September 30, 2003, October 31, 2003, and December 3, 2003.

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

The Respondents failed to maintain the necessary erosion control measures at the Site as observed during inspections conducted on August 4, 2003, September 30, 2003, October 31, 2003, and December 3, 2003, in violation of 327 IAC 15-5-7(c).

7. 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.

The Respondents 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 the inspections conducted on September 30, 2003, October 31, 2003, and December 3, 2003, in violation of IC 13-18-4-5.

8. An inspection conducted at the Site by IDNR staff on May 13, 2004, indicated that corrective action was required regarding management in keeping roadways clear of accumulated sediment or tracked soil. The other applicable areas of construction site management for erosion and sediment control were evaluated as marginal, indicating that concerns were identified, and corrective actions were recommended to remain in compliance. An inspection conducted at the Site by IDNR staff on June 15, 2004, indicated no unsatisfactory area of construction site management for erosion and sediment control and some areas were evaluated as satisfactory. However during the inspection some areas of construction site management for erosion and sediment control were evaluated as marginal, indicating that concerns were identified, and corrective actions were recommended to remain in compliance.

9. In recognition of the settlement reached, the Respondents waive 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 Respondents. This Agreed Order shall have no force or effect until the Effective Date.

2. The Respondents shall maintain compliance with the applicable provisions of 327 IAC 5-5-7, and IC 13-18-4-5.

3.         The Respondents 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.

4.         The Respondents shall comply with 327 IAC 15-5-7, IC 13-18-4-5 and 327 IAC 2-1-6(a)(1) by preventing sedimentation from entering the waters of the State from locations identified in the on-site evaluations in accordance with the plan 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. Respondents will be deemed to have satisfied the requirements of paragraphs 2 and 3 and 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 Respondents have no “unsatisfactory” ratings in inspections from IDNR 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.

5.         The Respondents 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 control measures 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, one-half (0.5) inch of rainfall.

6.         In the event that deficiencies are found during the inspections of the Site conducted pursuant to Order Paragraph 5 above, the Respondents 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 Respondents shall maintain records of the inspections conducted pursuant to Order Paragraph 5 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 Respondents shall maintain the records required pursuant to Order Paragraph 7 above at the Site or at the offices of the Wininger Stolberg Group, and shall make such records available for inspection and copying by representatives of IDEM, IDNR, and the Monroe County SWCD within 48 hours of a request as required by 327 IAC 15-5-7(b)(18).

9.         The Respondents shall, within 15 days of the Effective Date, provide written notification to all general contractors, construction management firms, grading or excavating contractors, utility contractors, and the contractors that have primary oversight on individual building lots of the terms and conditions of 327 IAC 15-5 and the conditions and standards of the approved ESCP and schedule for proposed implementation, as required by 327 IAC 15-5-7(b)(9).

10.       The Respondents 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 required parties.

11.       The requirements of Paragraphs 3 through 10 above shall remain in effect until the earlier of:

a.         Respondents submit notification of termination of construction activity pursuant to 327 IAC 15-5-8 for the Site, and a representative of IDNR approves the adequacy of the remaining permanent erosion control measures in accordance with 327 IAC 15-5-8(b), or

b.         Respondents demonstrate no “unsatisfactory” ratings in inspections from IDNR or the local SWCD for one year as required by Paragraph 4 above.

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

Terry Ressler, Enforcement Case Manager

Water Enforcement Section

Office of Enforcement

Indiana Department of Environmental Management

100 North Senate Avenue

P. O. Box 6015

Indianapolis, IN 46206-6015

13.       The Respondents are assessed a civil penalty of Nine Thousand Dollars ($9,000). 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 Respondents 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 3a and 3b

$500 per violation

Paragraph 4

Failure to implement the erosion and sediment control measures contained in the approved ESCP

$500 per violation

Paragraph 5

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 at the offices of the Wininger Stolberg Group, or failure to make required records available to IDEM, IDNR, and the Monroe County SWCD

$500 per violation

Paragraph 10

Failure to timely submit certification statement and copy of notice provided pursuant to Order Paragraph 9

$250 per week or part thereof late

15.       Stipulated penalties shall be due and payable within 30 days after the Respondents receive 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 Respondents 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 Respondents' 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 (2004-13914-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 Respondents 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 Respondents of their 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 Respondents' compliance with any aspect of this Agreed Order will result in compliance with the applicable requirements of federal or state law or regulation.

20.              This Agreed Order shall apply to and be binding upon the Respondents, their successors and assigns. The Respondents' 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 Respondents 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 Respondents shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights are transferred. Respondents shall ensure that all contractors, firms and other 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 Respondents have complied with Order Paragraphs 3 through 17 of this Agreed Order and IDEM has issued a close-out letter to the Respondents.

TECHNICAL RECOMMENDATION:

RESPONDENTS:

Department of Environmental Management

Wininger/Stolberg Land Holdings, Inc.

By:

_____________________________

By:

______________________________

Mark W. Stanifer, Chief

Printed:

______________________________

Water Enforcement Section

Title:

_____________________________

Office of Enforcement

Date:

_____________________________

Date:

______________________________

Wininger Stolberg Group

By:

______________________________

Printed:

______________________________

Title:

_____________________________

Date:

______________________________

COUNSEL FOR COMPLAINANT:

COUNSEL FOR RESPONDENTS:

Department of Environmental Management

By:

_____________________________

By:

______________________________

Joseph H. Merrick, Attorney

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

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 3a and 3b	$500 per violation
Paragraph 4	Failure to implement the erosion and sediment control measures contained in the approved ESCP	$500 per violation
Paragraph 5	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 at the offices of the Wininger Stolberg Group, or failure to make required records available to IDEM, IDNR, and the Monroe County SWCD	$500 per violation
Paragraph 10	Failure to timely submit certification statement and copy of notice provided pursuant to Order Paragraph 9	$250 per week or part thereof late

TECHNICAL RECOMMENDATION:		RESPONDENTS:
Department of Environmental Management		Wininger/Stolberg Land Holdings, Inc.
By:	_____________________________	By:	______________________________
	Mark W. Stanifer, Chief	Printed:	______________________________
	Water Enforcement Section	Title:	_____________________________
	Office of Enforcement
Date:	_____________________________	Date:	______________________________

		Wininger Stolberg Group
		By:	______________________________
		Printed:	______________________________
		Title:	_____________________________
		Date:	______________________________

COUNSEL FOR COMPLAINANT:		COUNSEL FOR RESPONDENTS:
Department of Environmental Management
By:	_____________________________	By:	______________________________
	Joseph H. Merrick, Attorney
	Office of Legal Counsel
Date:	_____________________________	Date:	______________________________

STATE OF INDIANA

)

BEFORE THE INDIANA DEPARTMENT

AGREED ORDER

I. FINDINGS OF FACT