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STATE OF |
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BEFORE THE INDIANA
DEPARTMENT |
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COMMISSIONER OF THE
DEPARTMENT Complainant, v.
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
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 via Certified Mail to:
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Randy Lindauer, President |
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5. Pursuant
to 327 IAC 15-2-5(a), any person subject to the requirements of 327 IAC 15
shall submit a notice of intent ("NOI") letter that complies with 327
IAC 15-2-5, 327 IAC 15-3, and the additional requirements in the applicable
general permit rule.
Pursuant
to 327 IAC 15-5-2(a), the requirements under this rule apply to all persons
who:
(1) do not
obtain an individual NPDES permit under 327 IAC 15-2-6;
(2) meet
the general permit rule applicability requirements under 327 IAC 15-2-3; and
(3) are
involved in construction activity, except operations that result in the land
disturbance of less than one (1) acre of total land area as determined under subsection
(h) and are not part of a larger common plan of development or sale.
Pursuant to 327 IAC 15-5-2(d),
the project site owner has the following responsibilities:
(1) Complete
a sufficient notice of intent letter.
(2) Ensure
that a sufficient construction plan is completed and submitted in accordance
with 327 IAC 15-5-6;
(3) Ensure
compliance with 327 IAC 15-5 during:
(A) the construction activity; and
(B) implementation
of the construction plan.
(4) Notify
the department with a sufficient notice of termination letter.
(5) Ensure
that all persons engaging in construction activities on a permitted project
site comply with the applicable requirements of 327 IAC 15-5 and the approved
construction plan.
Pursuant to 327 IAC 15-5-5,
the information set forth in 327 IAC 15-5-5 must be submitted by the project
site owner with a complete NOI letter under this rule, including a notification
from the SWCD or other entity designated by the department as the reviewing
agency indicating that the construction plans are sufficient to comply with
this rule.
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 327 IAC 15-5-5 shall be submitted to the
commissioner at least forty-eight (48) hours prior to the initiation of land
disturbing activities at the site.
Based on an inspection conducted by IDEM staff on April
2, 2007, and a record review, Respondent failed to submit an NOI letter to IDEM
prior to initiating land disturbing activities at the Site, in violation of 327
IAC 15-2-5, 327 IAC 15-5-2, 327 IAC 15-5-5, and 327 IAC 15-5-6.
6. Pursuant
to 327 IAC 15-5-6.5(a), for project sites that do not meet the criteria in 327
IAC 15-5-6.5(b), the project site owner shall develop a set of construction
plans. Storm water quality measures
included in the plan must achieve the minimum project site requirements
specified in 327 IAC 15-5-7, and must include the information set forth in 327
IAC 15-5-6.5(a).
Pursuant to 327 IAC
15-5-6(b)(1), for a project site where the proposed land disturbance is one (1)
acre or more as determined under 327 IAC 15-5-2, a construction plan must be
submitted prior to the initiation of any land disturbing activities, and sent
to the appropriate SWCD or other entity designated by IDEM for review.
Based
on the inspection conducted by IDEM staff on April 2, 2007, and a record review,
Respondent failed to submit a construction plan for the Site prior to
initiating land disturbing activities, in violation of 327 IAC 15-5-2(d), 327
IAC 15-5-6.5(a) and 327 IAC 15-5-6(b).
7.
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 327 IAC 15-5-7(b).
Pursuant to 327 IAC 15-5-7(b), a project site owner
shall, at least, meet the requirements set forth in this section including the
following:
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)
The project site
owner shall post a notice near the main entrance of the project site, in
accordance with subdivision (6) of this rule.
3)
Natural
features, including wetlands and sinkholes, shall be protected from pollutants
associated with stormwater run-off.
4)
A
self-monitoring program that includes provisions of subdivision (18) of this
rule shall be implemented.
Based on the inspection conducted by IDEM staff on April 2, 2007 Respondent
failed to ensure that all storm water
quality measures and erosion and sediment controls necessary to comply with
this rule were implemented in accordance with a construction plan and
sufficient to satisfy 327 IAC 15-5-7(b).
Specifically it was observed that Respondent:
(1) Failed
to implement erosion and sediment control measures to minimize sedimentation
from sediment-laden water which would flow from the project site, in violation
of 327 IAC 15-5-7(b)(1).
(2) Failed
to post a notice near the main entrance of the
project site, in accordance with subdivision (6) of this rule.
(3) Failed
to protect from pollutants natural features including wetlands and sinkholes.
(4) Failed to implement a self monitoring program that
includes provisions of subdivision (18) of this rule.
8.
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; and
(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
other wise impair the designated uses.
Pursuant
to Indiana Code (“IC”) 13-30-2-1(1), a person may not discharge, emit, cause,
allow or threaten to discharge, emit, cause, or allow any contaminant or waste,
including any noxious odor, either alone or in combination with contaminants
from other sources, into the environment.
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.
Respondent failed to install
erosion and sediment control measures sufficient to prevent sediment from
entering an un-named tributary of the Blue River and allowed sediment to leave
the Site by passing through a culvert pipe that goes under Voyles Road to the
west then into the Blue River, all of which are waters of the State, in amounts
sufficient to threaten or cause actual harm to the environment, in violation of
327 IAC 2-1-6(a)(1), and thus violated to IC 13-30-2-1(1) and IC 13-18-4-5.
9.
Additionally,
Respondent, as the project site owner, failed to ensure compliance with 327 IAC
15-5 during the construction activity and during implementation of a
construction plan, in violation of 327 IAC 15-5-2(d).
10.
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 all rules and statutes cited above at issue.
3. Respondent
is assessed a civil penalty of Seven Thousand Seven Hundred Five Dollars ($7,705). Said penalty amount shall be due and payable
to the Environmental Management Special Fund within thirty (30) days of the
Effective Date. In the event that 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.
4. Civil
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:
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Indiana
Department of Environmental Management |
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Cashier
– Mail Code 50-10C |
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5. This
Agreed Order shall apply to and be binding upon Respondent and his 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 his status or responsibilities under this Agreed Order.
6. 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.
7. 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.
8. 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 his applicable permits or any applicable Federal or State
law or regulation.
9. 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.
10. 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.
11. 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.
12. This Agreed Order shall
remain in effect until Respondent complies with the terms of Order.
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TECHNICAL RECOMMENDATION: |
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RESPONDENT: |
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Department of Environmental Management |
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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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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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APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF
ENVIRONMENTAL |
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MANAGEMENT THIS |
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, 2008. |
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For the Commissioner: |
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Signed on June 6, 2008 |
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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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