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STATE
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BEFORE THE INDIANA DEPARTMENT |
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COMMISSIONER OF THE DEPARTMENT Complainant, v. MILLENNIUM DEVELOPMENT, INC, Respondent. |
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Complainant and 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.
1.
Complainant is
the Commissioner (Complainant) of the Indiana Department of Environmental
Management, a department of the State of
2.
Respondent is Millennium
Development, Inc., (Respondent), who owns and operates the Eagle River
Subdivision development 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, IDEM issued a Notice of Violation via Certified Mail on May 1, 2007 to:
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Millennium
Development, Inc. |
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Eleftherios
Maggos, President and Registered Agent |
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4011
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5. Pursuant
to 327 IAC 15-5-7(a), all storm water quality measures and erosion and sediment
controls necessary to comply with this rule must be implemented in accordance
with the construction plan and sufficient to satisfy subsection (b).
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.
Natural features, including wetlands and sinkholes, shall be protected
from pollutants associated with storm water run-off [327 IAC 15-5-7(b)(1 &
15)].
b. Collected
run-off leaving a project site must be either discharged directly into a
well-defined, stable receiving channel or diffused and released to adjacent
property without causing an erosion or pollutant problem to the adjacent
property owner. Drainage channels and
swales must be designed and adequately protected so that their final gradients
and resultant velocities will not cause erosion in the receiving channel or at
the outlet [327 IAC 15-5-7(b)(13 & 14)].
c. Public
or private roadways shall be kept cleared of accumulated sediment that is a
result of run-off or tracking [327 IAC 15-5-7(b)(4)].
d. The
project site owner shall post a notice near the main entrance of the project
site. The notice must contain the
information set forth in 327 IAC 15-5-7(b)(6).
e. A
self-monitoring program must be implemented in which a trained individual shall
perform a written evaluation of the project site by the end of the next
business day following each measureable storm event, and at a minimum of one
time per week. The evaluation must
address the maintenance of existing storm water quality measures to ensure they
are functioning properly [327 IAC 15-5-7(b)(18)(B)(i)].
Pursuant to 327 IAC 15-5-7.5(a), all storm water quality measures,
including erosion and sediment control, necessary to comply with this rule must
be implemented in accordance with the plan and sufficient to satisfy subsection
(b).
Pursuant to 327 IAC 15-5-7.5(b), provisions for erosion and
sediment control on individual building lots regulated under the original
permit of a project site owner must require that the individual lot operator,
whether owning the property or acting as the agent of the property owner, shall
be responsible for erosion and sediment control requirements associated with
activities on individual lots. Installation
and maintenance of appropriate perimeter erosion and sediment control measures
is required prior to land disturbance, and sediment discharge and tracking from
each lot must be minimized throughout the land disturbing activities on the lot
until permanent stabilization has been achieved.
Based on inspections conducted by IDEM staff, Respondent failed to
ensure that erosion control measures were implemented and maintained at the
Site and failed to ensure that off-site sedimentation did not occur during the
period of construction activity from September 19, 2006 to February 1,
2007. Specifically:
a. During
inspections conducted on September 19, 2006, November 13, 2006, January 3,
2007, and February 1, 2007, it was observed that Respondent had failed to
implement appropriate storm water quality measures in accordance with the plan
and sufficient to meet the requirements of 327 IAC 15-5-7(b), in violation of
327 IAC 15-5-7(a).
b.
During inspections
conducted on September 19, 2006, November 13, 2006, January 3, 2007, and
February 1, 2007, it was observed that Respondent had failed to minimize
sedimentation to off-site areas, including a receiving stream and natural
features, in violation of 327 IAC 15-5-7(b)(1 & 15).
c. During
inspections conducted on September 19, 2006, November 13, 2006, January 3,
2007, and February 1, 2007, it was observed that storm water runoff from the
site was causing erosion at the point of discharge, in violation of 327 IAC
15-5-7(b)(13 & 14).
d. During
inspections conducted on September 19, 2006, November 13, 2006, and January 3,
2007, it was observed that soil material was being tracked and deposited onto
public and private roadways, in violation of 327 IAC 15-5-7(b)(4).
e. During
inspections conducted on September 19, 2006, November 13, 2006, January 3,
2007, and February 1, 2007, it was observed that Respondent had not posted the
required project information, in violation of 327 IAC 15-5-7(b)(6).
f. During
inspections conducted on September 19, 2006, November 13, 2006, January 3,
2007, and February 1, 2007, it was observed that Respondent had failed to
maintain storm water measures to ensure that they were functioning properly, in
violation of 327 IAC 15-5-7(b)(18)(B)(i).
g. During inspections conducted on September 19, 2006,
November 13, 2006, January 3, 2007, and February 1, 2007, it was observed that
Respondent had failed to implement and maintain erosion and sediment control
measures on individual lots within the permitted site, in violation of 327 IAC
15-5-7.5.
6. On
May 24, 2007, IDEM staff conducted an inspection at the Site and met with
Respondent's representatives. During the
inspection it was observed that Respondent had made some improvements to some
erosion control measures, however some erosion control measures remained
unsatisfactory. Respondent indicated
that the remaining erosion control deficiencies at the Site would be timely
addressed. A copy of the May 24, 2007
On-Site Evaluation for Erosion and Sediment Control was sent to Respondent.
On June 7, 2007, Respondent's representative submitted a response
to the May 24, inspection. The response
indicated Respondent had finished installing the necessary erosion control
measures that had been discussed during the inspection.
On June 26, 2007, a follow-up site visit was conducted by IDEM
staff during which it was observed that some of the unsatisfactory erosion
control measures had been addressed, however it was observed that there were
disturbed areas that remained inadequately protected through seeding or other
appropriate erosion and sediment control measures. The Respondent has indicated that these
deficiencies have been addressed.
7. 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 his delegate, and has been received by Respondent. This Agreed Order shall have no force or
effect until the Effective Date.
2.
Respondent shall
maintain compliance with the applicable provisions of 327 IAC 5-5-7 and 327 IAC 15-5-7.5
3.
Immediately, upon the
Effective Date, Respondent shall implement the erosion and sediment control
measures contained in the approved Construction/Storm Water Pollution
Prevention Plan 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 327 IAC 15-5-7.5, 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 Construction/Storm
Water Pollution Prevention Plan and the methods outlined in the Indiana Handbook for Erosion Control. 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 IDEM 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 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 has been submitted
and accepted.
4. 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 327 IAC 15-5-7.5,
and
c.
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, 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. 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. Respondent
shall make the records required pursuant to Order Paragraph 6 above available
for inspection and copying by representatives of IDEM, and the Allen County SWCD.
8. 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 Construction/Storm Water
Pollution Prevention Plan.
9. Respondent
shall, within 30 days of the Effective Date, submit to IDEM a copy of the
notification required pursuant to Order Paragraph 8 above and a statement
certifying that the notification was provided to all parties with access to the
Site.
10. The
requirements of Paragraphs 3 through 9 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 IDEM
approves the adequacy of the remaining permanent erosion control measures in
accordance with 327 IAC 15-5-8(b).
11. Upon
completion of the current construction project at the Site, as required by 327 IAC 15-5-8 and 327 IAC 15-5-11,
Respondent shall submit to IDEM, the notice of termination, which states
that the project is complete. The notice of termination
shall be submitted to the address below:
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Rule 5 Stormwater
Coordinator |
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Wet Weather Section |
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IDEM, Office of Water
Quality – Mail Code 65-40 |
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12. All
submittals required by this Agreed Order, unless notified otherwise in writing,
shall be sent to:
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Terry Ressler, Enforcement
Case Manager |
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IDEM, Office of
Enforcement – Mail Code 60-02 |
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13.
Respondent is
assessed a civil penalty of Eight Thousand Three Hundred and Thirty Dollars ($8,330).
The civil penalty shall be paid in the following manner:
$2,082.50
shall be paid within 30 days of the Effective Date;
$2,082.50
shall be paid within 120 days of the Effective Date;
$2,082.50
shall be paid within 210 days of the Effective Date; and
the
final $2,082.50 shall be paid within 300 days of the Effective Date.
Said
penalty amounts shall be due and payable to the Environmental Management
Special Fund. In the event that the
civil penalty is not paid in accordance with the above noted 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.
14.
In the event the
terms and conditions of the following paragraphs are violated, Complainant may assess and Respondent shall
pay a stipulated penalty in the following amount:
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Order Paragraph |
Violation |
Penalty |
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Paragraph 3 |
Failure to implement the
erosion and sediment control measures contained in the approved
Construction/Storm Water Pollution Prevention Plan and any other erosion and
sediment control measures necessary to comply with the requirements of
Paragraph 3a and 3b |
$500 per violation |
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Paragraph 4 |
Failure to inspect the
Site as required |
$500 per violation |
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Paragraph 5 |
Failure to immediately
take all actions necessary to correct deficiencies found during Site
inspections |
$500 per violation |
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Paragraph 6 |
Failure to maintain
records as required |
$500 per violation |
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Paragraph 7 |
Failure to maintain
required records at the Site, or failure to make required records available
to IDEM, and the Allen County SWCD |
$500 per violation |
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Paragraph 9 |
Failure to timely submit
certification statement and copy of notice provided pursuant to Order Paragraph
16 |
$250 per week or part
thereof late |
15.
Stipulated
penalties shall be due and payable within 30 days after Respondent receives
written notice that Complainant has determined a stipulated penalty is
due. Assessment and payment of
stipulated penalties shall not preclude Complainant from seeking any additional
relief against Respondent for violation of the Agreed Order. In lieu of any of the stipulated penalties
given above, Complainant may seek any other remedies or sanctions available by
virtue of 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 (2006-16788-W) of this action and shall be mailed to:
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Indiana Department of
Environmental Management |
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Cashiers Office – Mail
Code 50-10C |
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17. This
Agreed Order shall apply to and be binding upon Respondent and its successors
and assigns. Respondent’s signatories to
this Agreed Order certify that he is fully authorized to execute this Agreed
Order and legally bind the party he represents.
No change in ownership, corporate, or partnership status of Respondent shall
in any way alter its status or responsibilities under this Agreed Order.
18. In the
event that any terms of this 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 this Agreed Order did not contain the invalid terms.
19. 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.
20. 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 Respondent pursuant to this Agreed Order,
shall not in any way relieve Respondent of its obligation to comply with the
requirements of its applicable permit or any applicable Federal or State law or
regulation.
21. Complainant does not, by its approval of
this Agreed Order, warrant or aver in any manner that Respondent’s compliance
with any aspect of this Agreed Order will result in compliance with the
provisions of any permit, 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
Respondent may incur as a result of Respondent’s efforts to comply with this
Agreed Order.
22. 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,
and hereby waives its right to, seek additional civil penalties for the same violations
specified in the NOV.
23. Nothing in this Agreed Order shall
prevent IDEM [or anyone acting on its behalf] from communicating with the 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 Respondent may incur as a result of such communications with the
EPA or any other agency or entity.
24. This
Agreed Order shall remain in effect until the Respondent has complied with
Order Paragraphs 3 through 16 of this Agreed Order and IDEM has issued a
close-out letter to the Respondent.
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TECHNICAL
RECOMMENDATION: |
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RESPONDENT: |
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Department
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Millennium
Development, Inc. |
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By: |
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By: |
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Mark W.
Stanifer, Chief |
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Printed: |
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Water
Enforcement Section |
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Title: |
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Office
of Enforcement |
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Date: |
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Date: |
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COUNSEL
FOR COMPLAINANT: |
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COUNSEL
FOR RESPONDENT: |
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For
the Department of Environmental Management |
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By: |
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By: |
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Deputy
Attorney General |
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Date: |
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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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DAY OF |
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,
2007. |
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For
the Commissioner: |
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Signed
on November 9, 2007 |
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Robert
B. Keene |
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Assistant
Commissioner |
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Office
of Legal Counsel and Enforcement |
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