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STATE OF |
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BEFORE THE INDIANA
DEPARTMENT |
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COMMISSIONER OF THE
DEPARTMENT Complainant, v. WBSH ACQUISITIONS, INC., Respondent. |
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AGREED ORDER
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.
I.
FINDINGS OF FACT
1.
Complainant is
the Commissioner (“Complainant”) of the Indiana Department of Environmental
Management (“IDEM”), a department of the State of
2.
Respondent is
WBSH Acquisitions, Inc. (“Respondent”), who has initiated construction of the
Mt. Aerie Golf Course and associated irrigation ponds, located at Mt.Aerie Road
and CR 25 N in French Lick, Orange County, Indiana (the “Site”).
3.
IDEM has
jurisdiction over the parties and the subject matter of this action.
4.
Pursuant to IC
13-30-3-3, IDEM issued a Notice of Violation, on July 12, 2007, via Certified
Mail to:
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Greg
Blum |
Corporation
Service Company |
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WSBH
Acquisitions, Inc. |
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5. Pursuant
to 327 IAC 15-5-6(a), after the project site owner has received notification
from the reviewing agency that the construction plans meet the requirements of
the rule or the review period outlined in subsection (b)(3) has expired, all
NOI letter information required under section 5 of this rule shall be submitted
to the commissioner at least forty-eight (48) hours prior to the initiation of
land disturbing activities at the site. A copy of the completed NOI letter must
also be submitted to all SWCDs, or other entity designated by the department,
where the land disturbing activities are to occur.
Respondent failed to submit the required NOI letter prior to initiation of land
disturbing activities on or about March 28, 2007, in violation of 327 IAC
15-5-6(a).
6. Pursuant
to 327 IAC 15-5-6(b), for a project site where the proposed land disturbance is
one (1) acre or more as determined under section 2 of this rule, the following
requirements must be met:
(1) A
construction plan must be submitted according to the following:
(A) Prior
to the initiation of any land disturbing activities.
(B) Sent
to the appropriate SWCD or other entity designated by the department for:
(i) review
and verification that the plan meets the requirements of the rule; or
(ii) a
single coordinated review in accordance with subsection (d)(3) if:
(AA) the
construction activity will occur in more than one (1) SWCD; and
(BB) the
project site owner has made a request for a single coordinated review.
(2)
If the
construction plan required by subdivision (1) is determined to be deficient,
the SWCD, DNR-DSC, or other entity designated by the department as the
reviewing agency may require modifications, terms, and conditions as necessary
to meet the requirements of the rule. The initiation of construction activity
following notification by the reviewing agency that the plan does not meet the
requirements of the rule is a violation and subject to enforcement action. If
notification of a deficient plan is received after the review period outlined
in subdivision (3) and following commencement of construction activities, the
plans must be modified to meet the requirements of the rule and resubmitted
within fourteen (14) days of receipt of the notification of deficient plans.
Respondent failed to submit a Construction Plan prior to initiation of land
disturbing activities on or about March 28, 2007, in violation of 327 IAC
15-5-6(b)(1) and 327 IAC 15-5-6(b)(2).
7. Pursuant
to 327 IAC 15-5-7(a), and 327 IAC 15-5-7(b), 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
the following requirements:
(1) Sediment-laden
water which otherwise would flow from the project site shall be treated by
erosion and sediment control measures appropriate to minimize sedimentation.
(2) Appropriate
measures shall be implemented to minimize or eliminate wastes or unused
building materials, including garbage, debris, cleaning wastes, wastewater,
concrete truck washout, and other substances from being carried from a project
site by run-off or wind. Identification of areas where concrete truck washout
is permissible must be clearly posted at appropriate areas of the site. Wastes
and unused building materials shall be managed and disposed of in accordance
with all applicable statutes and regulations.
(3) A
stable construction site access shall be provided at all points of construction
traffic ingress and egress to the project site.
(4) Public
or private roadways shall be kept cleared of accumulated sediment that is a
result of run-off or tracking. Bulk clearing of sediment shall not include
flushing the area with water. Cleared sediment shall be redistributed or disposed
of in a manner that is in accordance with all applicable statutes and
regulations.
(5) Storm
water run-off leaving a project site must be discharged in a manner that is
consistent with applicable state or federal law.
(6) The
project site owner shall post a notice near the main entrance of the project
site. For linear project sites, such as a pipeline or highway, the notice must
be placed in a publicly accessible location near the project field office. The
notice must be maintained in a legible condition and contain the following
information:
(A) Copy
of the completed NOI letter and the NPDES permit number, where applicable.
(B) Name,
company name, telephone number, e-mail address (if available), and address of
the project site owner or a local contact person.
(C) Location
of the construction plan if the project site does not have an on-site location
to store the plan.
(7) This
permit and posting of the notice under subdivision (6) does not provide the
public with any right to trespass on a project site for any reason, nor does it
require that the project site owner allow members of the public access to the
project site.
(8) The
storm water pollution prevention plan shall serve as a guideline for storm
water quality, but should not be interpreted to be the only basis for
implementation of storm water quality measures for a project site. The project
site owner is responsible for implementing, in accordance with this rule, all
measures necessary to adequately prevent polluted storm water run-off.
(9) The project
site owner shall inform 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 this rule and the conditions and standards of the storm water
pollution prevention plan and the schedule for proposed implementation.
(10) Phasing
of construction activities shall be used, where possible, to minimize
disturbance of large areas.
(11) Appropriate
measures shall be planned and installed as part of an erosion and sediment
control system.
(12) All
storm water quality measures must be designed and installed under the guidance
of a trained individual.
(13) 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.
(14) 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.
(15) Natural
features, including wetlands and sinkholes, shall be protected from pollutants
associated with storm water run-off.
(16) Unvegetated
areas that are scheduled or likely to be left inactive for fifteen (15) days or
more must be temporarily or permanently stabilized with measures appropriate
for the season to minimize erosion potential. Alternative measures to site
stabilization are acceptable if the project site owner or their representative
can demonstrate they have implemented erosion and sediment control measures
adequate to prevent sediment discharge. Vegetated areas with a density of less
than seventy percent (70%) shall be restabilized using appropriate methods to
minimize the erosion potential.
(17) During
the period of construction activities, all storm water quality measures
necessary to meet the requirements of this rule shall be maintained in working
order.
(18) A
self-monitoring program that includes the following must be implemented:
(A) A
trained individual shall perform a written evaluation of the project site:
(i) by
the end of the next business day following each measurable storm event; and
(ii) at a
minimum of one (1) time per week.
(B) The
evaluation must address:
(i) the
maintenance of existing storm water quality measures to ensure they are
functioning properly; and
(ii) identify
additional measures necessary to remain in compliance with all applicable
statutes and rules.
(C) Written
evaluation reports must include:
(i) the
name of the individual performing the evaluation;
(ii) the
date of the evaluation;
(iii) problems
identified at the project site; and
(iv) details
of corrective actions recommended and completed.
(D) All
evaluation reports for the project site must be made available to the
inspecting authority within forty-eight (48) hours of a request.
(19) Proper
storage and handling of materials, such as fuels or hazardous wastes, and spill
prevention and clean-up measures shall be implemented to minimize the potential
for pollutants to contaminate surface or ground water or degrade soil quality.
(20) Final
stabilization of a project site is achieved when:
(A) all
land disturbing activities have been completed and a uniform (for example,
evenly distributed, without large bare areas) perennial vegetative cover with a
density of seventy percent (70%) has been established on all unpaved areas and
areas not covered by permanent structures, or equivalent permanent
stabilization measures have been employed; and
(B) construction
projects on land used for agricultural purposes are returned to its
preconstruction agricultural use or disturbed areas, not previously used for
agricultural production, such as filter strips and areas that are not being
returned to their preconstruction agricultural use, meet the final
stabilization requirements in clause (A).
Respondent
failed to meet all of the above requirements, as was observed during IDEM
inspections of the site on May 22, 2007, April 11, 2007, and March 28, 2007, in
violation of 327 IAC 15-5-7(a), and 327 IAC 15-5-7(b). Particularly noted was failure to protect
natural features, including wetlands and sinkholes, from pollutants associated
with storm water run-off, and failure to minimize off-site sedimentation.
8. Pursuant
to 327 IAC 5-5-2(d)(5), the project site owner has the responsibility to ensure
that all persons engaging in construction activities on a permitted site comply
with the requirements of this rule and the approved construction plan.
Respondent
failed to ensure that all persons engaging in construction activities on the
site comply with the requirements of this rule and an approved construction
plan, in violation of 327 IAC 5-5-2(d)(5).
9. Pursuant
to 327 IAC 2-1-2(1), for all waters of the state, existing beneficial uses
shall be maintained and protected. No degradation of water quality shall be
permitted which would interfere with or become injurious to existing and
potential uses.
Pursuant
to 327 IAC 2-1-2(2), all waters whose existing quality exceeds the standards
established herein as of February 17, 1977, shall be maintained in their
present high quality unless and until it is affirmatively demonstrated to the
commissioner that limited degradation of such waters is justifiable on the
basis of necessary economic or social factors and will not interfere with or
become injurious to any beneficial uses made of, or presently possible, in such
waters. In making a final determination under this subdivision, the
commissioner shall give appropriate consideration to public participation and
intergovernmental coordination.
Pursuant to 327 IAC 2-1-6(a)(1), all waters at all times and at all places,
including the mixing zone, shall meet the minimum conditions of being free from
substances, materials, floating debris, oil, or scum attributable to municipal,
industrial, agricultural, and other land use practices, or other discharges:
(A) that
will settle to form putrescent or otherwise objectionable deposits;
(B) that
are in amounts sufficient to be unsightly or deleterious;
(C) that
produce color, visible oil sheen, odor, or other conditions in such degree as
to create a nuisance;
(D) which
are in amounts sufficient to be acutely toxic to, or to otherwise severely
injure or kill aquatic life, other animals, plants, or humans;
(E) which
are in concentrations or combinations that will cause or contribute to the
growth of aquatic plants or algae to such degree as to create a nuisance, be
unsightly, or otherwise impair the designated uses.
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.
Pursuant
to IC 13-30-2-1 a person may not discharge, emit, cause, allow, or threaten to
discharge, emit, cause, or allow any contaminant or waste into the environment
in any form that causes or would cause pollution that violates or would violate
rules, standards, or discharge or emission requirements adopted by the
appropriate board under the environmental management laws.
Respondent
mechanically removed all vegetation in massive grading and excavation
activities on the seventy (70) acre site, without adequate soil and erosion
control measures being installed and maintained. These activities allowed soil erosion and
off-site sedimentation to enter waters of the state, including direct and
indirect tributaries to Lost River, which has been designated by the Water
Pollution Control Board as an Exception Use Stream (327 IAC 2-11(b)(11)). Respondent failed to maintain appropriate
water quality standards by allowing contaminant wastes into the environment and
polluted condition of waters of the state, in violation of 327 IAC 2-1-2(1), 327
IAC 2-1-2(2), 327 IAC 2-1-6(a)(1), and therefore IC 13-18-4-5, and IC
13-30-2-1.
10. A
settlement conference was held on September 12, 2007 at which terms and
conditions of this Agreed Order were discussed.
Subsequently, on September 26, 2007, IDEM held a meeting with Respondent
to discuss a mitigation plan proposal as a means of resolving deficiencies to
comply with 33 U.S.C. 1341 Section 401 Water Quality Certification
requirements.
11. 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 15-5-6(a), 327
IAC 15-5-6(b)(1), 327 IAC 15-5-6(b)(2), 327 IAC 15-5-7(a), and 327 IAC
15-5-7(b), 327 IAC 5-5-2(d)(5), 327 IAC 2-1-2(1), 327 IAC 2-1-2(2), 327 IAC
2-1-6(a)(1), and therefore IC 13-18-4-5, and IC 13-30-2-1.
3.
Respondent
shall, within 30 days of the Effective date, submit a NOI and a “construction
plan” (CP) for the Site that contains all the
information required pursuant to 327 IAC 15-5-6(a) and 327 IAC 15-5-6(b).
4.
In the event
that the NOI submitted pursuant to Order Paragraph 3 above is found by IDEM to
be deficient, Respondent shall, within 15 days of receipt of notification from
IDEM of such deficiency(s), revise and resubmit the NOI. Should the revised NOI be found by IDEM to be
deficient, Respondent shall be subject to the stipulated penalties provided for
in Order Paragraph 17 below.
5.
For the purposes
of this Agreed Order, a CP is defined as a representation of a project site and
all activities associated with the project.
The plan includes the location of the project site, buildings and other
infrastructure, grading activities, schedules for implementation, and other
pertinent information related to the project site. A storm water pollution prevention plan
(SWPPP) is a part of the construction plan, pursuant to 327 IAC 15-5-4(5) and
327 IAC 15-5-4 (35) [rules effective October 27, 2003]
6.
Respondent
shall, immediately upon CP approval, implement the erosion and sediment control
measures contained in the approved CP 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 2-1-6(a)(1); 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 CP and the
methods outlined in the Indiana Handbook
for Erosion Control in Developing Areas from the 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 IDEM or the local SWCD
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 IDEM 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.
7.
Respondent shall, within ten days of the completion
of the milestone dates above, submit documentation of completion of each
milestone to IDEM’s Office of Enforcement at the address in paragraph 15,
below.
8.
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.
9.
In the event
that deficiencies are found during the inspections of the Site conducted pursuant
to Order Paragraph 8 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.
10.
Respondent shall
maintain records of the inspections conducted pursuant to Order Paragraph 8
above and corrective actions taken pursuant to Order Paragraph 9 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.
11.
Respondent
shall make the records required pursuant to Order Paragraph 10 above available
for inspection and copying by representatives of IDEM, and the SWCD.
12.
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.
13.
Respondent
shall, within 30 days of the Effective Date, submit to IDEM a copy of the
notification required pursuant to Order Paragraph 12 above and a statement
certifying that the notification was provided to all parties with access to the
Site.
14.
The
requirements of Paragraphs 6 through 13 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).
15.
All
submittals required by this Agreed Order, unless notified otherwise in writing,
shall be sent to:
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Dave
Knox, Enforcement Case Manager |
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Water
Enforcement Section |
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Office
of Enforcement, Mail Code 60-02 |
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Indiana
Department of Environmental Management |
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16.
Respondent is
assessed a civil penalty of Sixty Seven Thousand Two Hundred Dollars
($67,200). Said civil penalty amount
shall be due and payable to the Environmental Management Special Fund within 30
days of the Effective Date.
17.
In the event the
terms and conditions of the following paragraphs are violated, the 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 submit NOI
within the required timeframe. |
$500 per week late |
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Paragraph 4 |
Failure to revise and
resubmit a sufficient NOI within the required timeframe. |
$500 per week late |
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Paragraph 6 |
Failure to implement the
erosion and sediment control measures contained in the approved CP and any
other erosion and sediment control measures necessary to comply with the
requirements of Paragraph 6a and 6b. |
$500 per violation |
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Paragraph 7 |
Failure to submit
documentation of completion of milestones |
$500 per week late |
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Paragraph 8 |
Failure to inspect the
Site as required |
$500 per violation |
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Paragraph 9 |
Failure to immediately
take all actions necessary to correct deficiencies found during Site
inspections |
$500 per violation |
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Paragraph 10 |
Failure to maintain
records as required |
$500 per violation |
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Paragraph 11 |
Failure to make required
records available to IDEM and SWCD for inspection and copying |
$500 per violation |
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Paragraph
13 |
Failure to timely submit
certification statement and copy of notice provided pursuant to Order
Paragraph 12 |
$250 per week or part
thereof late |
18.
Stipulated
penalties shall be due and payable within 30 days after 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 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 Respondent's violation of this Agreed Order or Indiana law,
including, but not limited to, civil penalties pursuant to IC 13-30-4.
19.
Civil and
stipulated penalties are payable by check to the Environmental Management
Special Fund. Payments shall include the
Case Number (2007-16790-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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20.
In the event that
the civil penalty required by Order Paragraph 16, is not paid within 30 days of
the Effective Date, 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.
21.
This Agreed
Order does not, in any way, relieve Respondent of its obligation to comply with
the applicable requirements of federal or state law or regulation.
22.
This Agreed
Order shall apply to and be binding upon 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 Respondent shall in any way alter its status or
responsibilities under this Agreed Order.
23.
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.
24.
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.
25.
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 his obligation to
comply with the requirements of any applicable permit or order or with any
other applicable federal or state law or regulation.
26.
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 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.
27.
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.
28.
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 Respondent may incur
as a result of such communications with the EPA or any other agency or entity.
29.
This Agreed
Order shall remain in effect until Respondent has complied with Order Paragraphs
3 through 20 of this Agreed Order and IDEM has issued a close-out letter to
Respondent.
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Mark Stanifer, Chief |
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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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Deputy Attorney General |
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APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF
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MANAGEMENT THIS |
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For the Commissioner: |
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Signed on January 24, 2008 |
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Robert B. Keene |
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Assistant Commissioner |
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