STATE OF INDIANA COUNTY OF MARION	) ) )	SS:	BEFORE THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT
COMMISSIONER OF THE DEPARTMENT OF ENVIRONMENTAL MANAGEMENT, Complainant, v. STAR FINANCIAL BANK, Respondent.				) ) ) ) ) ) ) ) ) )	Case No. 2007-17017-W

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. Pursuant to IC 13-30-3-3, entry into the terms of this Agreed Order does not constitute an admission of any violation contained herein. Respondent's entry into this Agreed Order shall not constitute a waiver of any defense, legal or equitable, which Respondent may have in any future administrative or judicial proceeding, except a proceeding to enforce this 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 Indiana created by Indiana Code (“IC”) 13-13-1-1.

2. Respondent is STAR Financial Bank (“Respondent”) which is the owner and operator of the STAR Financial Bank construction project, located at Auburn Road and Dupont Road, in Allen 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 August 17, 2007, via Certified Mail to:

STAR Financial Bank	STAR Financial Bank
James C. Marcuccilli, President	Karen F. Gregerson, Registered Agent
STAR Financial Bank Building	STAR Financial Bank Building
127 West Berry Street	127 West Berry Street
P.O. Box 10600	P.O. Box 10600
Fort Wayne, Indiana 46853-0600	Fort Wayne, Indiana 46853-0600

5. Pursuant to 33 U.S.C. 1341 Section 401, mechanical clearing, excavation, and filling of the Waters of the United States and Waters of the State is prohibited.

On March 15, 2007, Respondent met with IDEM staff during which the wetland status at the Site was discussed.

On April 19, 2007, IDEM sent notification to Respondent regarding Section 401 Water Quality Certification requirements at the Site.

On June 19, 2007, Respondent submitted a permit application for Section 401 Water Quality Certification at the Site.

During an inspection conducted at the Site on July 8, 2007, IDEM staff observed that Respondent had caused mechanical clearing, excavation, and filling of Waters of the United States and/or Waters of the State without issuance of Section 401 Water Quality Certification and/or State Isolated Wetland Permit, in violation of 33 U.S.C. 1341 Section 401.

6. Pursuant to 327 IAC 5-2-2, any discharge of pollutants into Waters of the State as a point source discharge, except for exclusions made in 327 IAC 5-2-4, is prohibited unless in conformity with a valid NPDES permit obtained prior to the discharge.

Pursuant to IC 13-11-2-260, pollution is the actual or threatened alteration of the physical, thermal, chemical, biological, bacteriological or radioactive properties of any waters.

Pursuant to IC 13-18-4-1(5)(A), the destruction of beneficial animal or vegetable life results in a “polluted condition.”

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 this state, or to cause, permit, or suffer to be thrown, run, drained, allowed to seep, or otherwise disposed into any waters, any organic or inorganic matter that shall cause or contribute to a polluted condition of any waters according to any rule of the board under section 7 of this chapter.

Pursuant to IC 13-30-2-1, it is unlawful for any person to discharge, emit, cause, or allow any contaminant or waste, including any noxious odor, either alone or in combination with contaminants from other sources in 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.

During the inspection conducted at the Site on July 8, 2007, IDEM staff observed that Respondent had caused the filling of a wetland, a Water of the State, thus altering the physical, chemical and biological properties of the wetland and causing the destruction of beneficial animal or vegetable life, without being in conformity with a valid NPDES permit obtained prior to the discharge, and without any exclusion under 327 IAC 5-2-4, in violation of 327 IAC 5-2-2, and therefore violated IC 13-18-4-5, and IC 13-30-2-1.

7. Pursuant to 327 IAC 2-1-6(a)(1), all surface 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 that will settle to form putrescent or otherwise objectionable deposits, that are in amounts sufficient to be unsightly or deleterious, that produce color, odor or other conditions in such degree as to create a nuisance, which are in amounts sufficient to be acutely toxic to, or to otherwise severely injure or kill aquatic life, other animals, plants, or humans.

Pursuant to 327 IAC 2-1-2(1), the following policy of non-degradation is applicable to all surface waters of the state: 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.

During the inspection conducted at the Site on July 8, 2007, IDEM staff observed that Respondent had caused the filling of wetland at the Site, resulting in objectionable deposits and causing the complete destruction of the wetland thus injuring or interfering with all existing beneficial uses of the wetland at the Site, in violation of 327 IAC 2-1-6(a)(1) and 327 IAC 2-1-2(1).

8. Respondent submitted a permit application for Section 401 Water Quality Certification for the Site on June 19, 2007. That permit application was determined to be incomplete as it lacked an adequate mitigation plan. Respondent submitted a revised permit application for Section 401 Water Quality Certification for the Site on April 1, 2008. On August 12, 2008, IDEM sent notification to Respondent that the revised permit application for Section 401 Water Quality Certification for the Site that Respondent submitted on April 1, 2008 was determined to be deficient.

9. On October 24, 2008, the U.S. Army Corps of Engineers issued an approved jurisdictional determination (JD). On December 16, 2008, Respondent submitted a request for appeal to the U.S. Army Corps of Engineers' JD. On February 11, 2009, the U.S. Army Corps of Engineers issued a new approved JD that included evaluation and consideration of new information that Respondent had submitted. On April 17, 2009, Respondent submitted a new request for appeal to the U.S. Army Corps of Engineers' new JD. On May 10, 2010, U.S. Army Corps of Engineers issued a new JD. The new JD concluded that the Site contained two non-connected wetlands, a 0.3 acre isolated wetland and a 0.5 acre jurisdictional wetland.

10. IDEM staff reviewed the U.S. Army Corps of Engineers' May 10, 2010 JD and determined that the 0.3 acre isolated wetland would have been considered a Class I wetland. Based on 327 IAC 17-1-3(7)(E), an isolated wetland that is a Class I wetland with an area, as delineated, of one-half (1/2) acres or less is considered to be exempt from state regulation. The 0.5 acre jurisdictional wetland was forested wetland that will require compensatory mitigation. Since this wetland was a Jurisdictional "waters of the U.S." regulated under the Clean Water Act, the classifications and mitigation ratios designated in 327 IAC 17 are not applicable. Therefore, Respondent is required to provide compensatory mitigation at a 4 to 1 ratio for the impact to a 0.5 acre jurisdictional forested wetland.

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 Complainant or Complainant’s delegate, and has been received by Respondent. This Agreed Order shall have no force or effect until the Effective Date.

2. Respondent shall comply with 33 U.S.C. 1341 Section 401, 327 IAC 5-2-2, IC 13-18-4-5, IC 13-30-2-1, 327 IAC 2-1-6(a)(1), and 327 IAC 2-1-2(1).

3. Respondent shall ensure that it adheres to all conditions set forth within the issued After-the-Fact Section 401 Water Quality Certification dated December 21, 2011. The mitigation shall consist of the creation of one (1) acre of forested wetland, enhancement of one (1) acre of existing forested wetland and enhancement of 2.2-acres of existing emergent wetland. The mitigation applied for this certification shall consist of that detailed within the mitigation plan dated October 2011 submitted to IDEM by Davey Resource Group.

4. All submittals required by this Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall be sent to:

Terry Ressler, Enforcement Case Manager

Indiana Department of Environmental Management

Office of Water Quality – Mail Code 60-02W

100 North Senate Avenue, Room 1255

Indianapolis, IN 46204-2251

5. Respondent is assessed a civil penalty of Twenty-five Thousand Dollars ($25,000). Twenty Thousand Dollars ($20,000) shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the Effective Date. In the event that the Twenty Thousand Dollars ($20,000) of the civil penalty is not paid within thirty (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. If Respondent completes construction of the mitigation plan by January 1, 2013, IDEM will agree to forego the remaining Five thousand Dollars ($5,000) of the civil penalty; however, if construction is not completed by January 1, 2013, Respondent agrees to pay the remaining Five Thousand Dollars ($5,000) of the civil penalty within thirty (30) days of notice from IDEM that the remaining balance is due. In the event that the remaining Five Thousand Dollars ($5,000) of the civil penalty is not paid within thirty (30) days of the notice sent from IDEM, Respondent shall pay interest on the unpaid balance at the rate established by IC 24-4.6-1-101. This interest shall continue to accrue until the unpaid portion of the civil penalty is paid in full.

6. 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:

Paragraph	Violation	Penalty
3	Failure to implement the approved plan and/or failure to adhere to the conditions for completing the mitigation.	$500 per day for each day past any deadline

7. Stipulated penalties shall be due and payable within thirty (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 this Agreed Order. In lieu of any of the stipulated penalties set out 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.

8. 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

Cashier – Mail Code 50-10C

100 North Senate Avenue

Indianapolis, IN 46204-2251

9. 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 they are fully authorized to execute this Agreed Order and legally bind the party they represent. No change in ownership, corporate, or partnership status of Respondent shall in any way alter their status or responsibilities under this Agreed Order.

10. 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.

11. The 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.

12. 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 permits or any applicable Federal or State law or regulation.

13. 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.

14. 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 Findings of Fact of this Agreed Order.

15. 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.

16. This Agreed Order shall remain in effect until Respondent has complied with all terms and conditions of Order Paragraphs 3 through 8 of this Agreed Order and IDEM issues a Resolution of Case letter.

TECHNICAL RECOMMENDATION:	RESPONDENT:
Department of Environmental Management	STAR Financial Bank
By: ________________________	By: ________________________
Mary Hollingsworth, Branch Chief
Surface Water, Operations, and	Printed: ______________________
Enforcement Branch
Office of Water Quality	Title: ________________________
Date: __________________	Date: _______________________
COUNSEL FOR COMPLAINANT:	COUNSEL FOR RESPONDENT:
For the Department of Environmental Management
By: ____________________	By: ______________________
Date: _______________________	Date: ______________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS ______ DAY OF ____________________, 20___.
	For the Commissioner:
	Signed on June 13, 2012
	Bruno Pigott
	Assistant Commissioner
	Office of Water Quality