STATE OF INDIANA

COUNTY OF MARION

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BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v.

BROWN-LADENDORF REAL ESTATE, LLC,

Respondent.

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Case No. 2008-18175-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.

 

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 Brown-Ladendorf Real Estate, LLC. (“Respondent”), which own and operate a company which provided construction for The Overlook at Fall Creek, in Indianapolis, Marion County, Indiana. During the development of this site, a 0.21 acre wetland was filled.

 

3.                  IDEM issued Respondent a Section 401 Water Quality Certification # 2004-387-49-RDC-A, authorizing the loss of 0.21 acre scrub shrub/forest wetland and mitigation of 0.84 acres of forested/scrub shrub and emergent wetland in the same 8-digit waterhead located in unincorporated, Hamilton County, Indiana (“the Site”).

 

4.                  IDEM has jurisdiction over the parties and the subject matter of this action.

 

5.                  Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation (“NOV”) to:

 

Richard Brown

Brown-Ladendorf Real Estate, LLC

608 East Market Street

608 East Market Street

Indianapolis, Indiana 46202

Indianapolis, Indiana 46202

 

6.                  During an investigation conducted by a representative of IDEM, the following violation was found:

1.                  Pursuant to Water Quality Certification # 2004-387-49-RDC-A, General Condition Number 5, Respondent must:

Submit annual monitoring reports of the mitigation wetland to this office by December 31 of each year until released from monitoring by this office.  These reports shall contain information concerning what steps the recipient of the certification has taken to create the mitigation wetland and whether the wetland is achieving each of the success criteria outlined in Project Specific Condition Number 8.  The reports shall include the following:

a.                  The IDEM identification number.

b.                  As-built plans (in the first year’s report)

c.                  Discussion of hydrology at the mitigation site.

d.                  Discussion of plant community development at the mitigation wetland site.

e.                  Discussion of methods or means used to determine compliance with the success criteria.

f.                    Photographs representative of the mitigation wetland site and sampling points.

g.                  Identification of any problems with meeting the success criteria.

h.                  Recommendations for correcting any problems identified.

i.                    Wetland delineation for the mitigation wetland in the final report.

 

IDEM records indicate that Respondent failed to submit the required mitigation monitoring reports as required by General Condition Number 5 of the Certification for the years 2006, 2007, and 2008, in violation of  Water Quality Certification # 2004-387-49-RDC-A.

 

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 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 the Water Quality Certification conditions listed in the findings above at issue.

 

3.                  Prior to May 31, 2010, Respondent shall implement the mitigation plan as described in Respondent’s application dated July 13, 2004, and additional correspondence dated September 17, 2004, and September 22, 2004, and as modified by the conditions of the Section 401 WQC.

 

4.                  Respondent shall submit a mitigation monitoring report for the Site by December 31, 2010, and every subsequent year thereafter until Respondent is released by IDEM from monitoring.

 

5.                  The mitigation monitoring reports shall be submitted to:

 

Jared Sanders

Indiana Department of Environmental Management

Office of Water Quality – Mail Code 65-42-WGS

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

6.                  In the event that the mitigation monitoring report pursuant to Order Paragraph 4 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 mitigation monitoring report.  Should the revised mitigation monitoring report be found by IDEM to be deficient, Respondent shall be subject to the stipulated penalties provided for in Order Paragraph 10 below.

 

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

 

Sue Bock, Enforcement Case Manager

Indiana Department of Environmental Management

Water Enforcement Section – Mail Code 60-02-W

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

8.                  Respondent is assessed a civil penalty of Five Thousand Seven Hundred Twenty Dollars ($5,720).  Said penalty amount shall be payable to the Environmental Management Special Fund and mailed to the address in Paragraph No. 11 of this Agreed Order.  In the event that the payment is not made when due, 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.

 

9.                  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

Stipulated Penalty

 

3

Failure to implement mitigation construction within the required time frame.

$5,000 per month late, or part thereof.

4

Failure to submit mitigation monitoring reports within the required time period.

$500 per week late, or part thereof.

 

10.             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.

 

11.             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

 

12.             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 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.

 

13.             IDEM reserves the right to file suit against Mr. Brown and Mr. Ladendorf individually, as responsible corporate officers of Brown-Ladendorf Real Estate, LLC, should IDEM be required to seek civil enforcement of the Agreed Order.  Mr. Brown and Mr. Ladendorf reserve the right to contest individual liability as responsible corporate officers, should IDEM seek civil enforcement of the Agreed Order against Mr. Brown and Mr. Ladendorf individually.

 

14.             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. 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.

 

15.             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 permit or any applicable Federal or State law or regulation.

 

16.             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.

 

17.             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.

 

18.             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.

 

19.             This Agreed Order shall remain in effect until Respondent has complied with all terms and conditions of Order Paragraph Nos. 3 through 11 and IDEM issues a Resolution of Case letter.

 

REMAINDER OF PAGE LEFT BLANK INTENTIONALLY

 

TECHNICAL RECOMMENDATION:

 

RESPONDENT:

Department of Environmental Management

 

Brown-Ladendorf Real Estate, LLC

 

By:

 

 

By:

 

 

Mark W. Stanifer, Chief

 

Printed:

 

 

Water Enforcement Section

 

Title:

 

 

Office of Water Quality

 

 

 

Date:

 

 

Date:

 

 

COUNSEL FOR COMPLAINANT:

 

COUNSEL FOR RESPONDENT:

Department of Environmental Management

 

 

 

By:

 

 

By:

 

 

Deputy Attorney General

 

 

Date:

 

 

Date:

 

 

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

 

DAY OF

 

, 200

 

.

 

 

For The Commissioner:

 

 

Signed on October 15, 2009

 

Bruno Pigott

 

Assistant Commissioner

 

Office of Water Quality