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.

BUCKINGHAM REALTY AND DEVELOPMENT CORP. d/b/a
SUMMERWOOD ON TOWNE LINE

 

Respondent.

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Case No. 2011-20339-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 Indiana Code (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 IC 13-13-1-1.

 

2.            Respondent is Buckingham Realty and Development Corp. d/b/a Summerwood on Towne Line (Respondent), which operates an apartment community located at 2520 Summer Drive, in Indianapolis, Marion County, Indiana (the Site).

 

3.            IDEM has jurisdiction over the parties and the subject matter of this action pursuant to IC 13-30-3.

 

4.            Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation (NOV) via Certified Mail to:

 

Kristin Lawrence, Property Manager

Bradley B. Chambers, President

Summerwood Apartments

Buckingham Companies

2520 Summer Drive

941 North Meridian Street

Indianapolis, IN 46268

Indianapolis, IN 46204

 

5.         Pursuant to IC 13-30-2-1, no person may 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 or into any publicly owned treatment works in any form which causes or would cause pollution which violates rules, standards, or discharge or emission requirements adopted by the appropriate board pursuant to this title.

 

Pursuant to 327 IAC 5-2-2, any discharge of pollutants into waters of the state as a point source discharge, is prohibited unless in conformity with a valid NPDES permit obtained prior to discharge.

 

            A manhole at the Site began to overflow to Crooked Creek which flows to the White River on June 18, 2011. Both are waters of the state. The manhole continued to overflow until June 23, 2011 at a rate of over 50,000 gallons a day, in violation of IC 13-30-2-1 and 327 IAC 5-2-2.

 

6.         In recognition of the settlement reached, Respondent waive 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 adopted by Complainant or Complainant’s delegate (as evidenced by signature), and the adopted Agreed Order has been received by Respondent.  This Agreed Order shall have no force or effect until the Effective Date.

 

2.            Respondent shall comply with IC 13-30-2-1 and 327 IAC 5-2-2 listed in the findings above at issue.

 

3.            Within 30 days of the Effective Date, Respondent shall provide to IDEM a plan that describes how it plans to better respond to future unpermitted discharges which includes providing complete and timely information in Sanitary Sewer Overflow/Bypass Reports.

 

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

 

Edward Judson, Enforcement Case Manager

Indiana Department of Environmental Management

Surface Water, Operations & Enforcement Branch

Office of Water Quality – Mail Code 60-02W

100 North Senate Avenue, Room 1255

Indianapolis, IN 46204-2251

 

5.            Respondent is assessed and agrees to pay a civil penalty of Six Thousand Dollars ($6,000).  Said penalty amount shall be due and payable to the Environmental Management Special Fund within 30 days of the Effective Date; the 30th day being a “Due Date.”

 

6.            In the event the terms and conditions of the following paragraphs are violated, IDEM may assess and Respondent shall pay the corresponding stipulated penalty:

 

Paragraph

Violation

Stipulated Penalty

 

3

Failure to submit management plan within the required time period.

$500 per week late, or part thereof.

 

7.            Stipulated penalties shall be due and payable no later than the 30th day after Respondent receives written notice that IDEM has determined a stipulated penalty is due; the 30th day being a “Due Date.”  IDEM may notify Respondent at any time that a stipulated penalty is due.  Failure to notify Respondent in writing in a timely manner of a stipulated penalty assessment shall not waive IDEM’s right to collect such stipulated penalty or preclude IDEM from seeking additional relief against Respondent for violation of this Agreed Order.  Neither assessment nor payment of stipulated penalties shall preclude IDEM from seeking additional relief against Respondent for a violation of this Agreed Order.  Such additional relief includes any remedies or sanctions available pursuant to 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.  This agreed Order shall jointly and severally 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 its status or responsibilities under this Agreed Order.

 

10.         In the event that the monies due to IDEM pursuant to this Agreed Order are not paid on or before their Due Date, Respondent shall pay interest on the unpaid balance and any accrued interest at the rate established by IC 24-4.6-1-102.  The interest shall be computed as having accrued from the Due Date until the date that Respondent pays any unpaid balance.  The interest shall continue to accrue on the first of each month until the civil penalty and any interest accrued are paid in full.  Such interest shall be payable to the Environmental Management Special Fund, and shall be payable to IDEM in the manner specified above.

 

11.         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.

 

12.         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.

 

13.         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.

 

14.         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.

 

15.         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.

 

16.         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.

 

17.         This Agreed Order shall remain in effect until Respondent pays the civil penalty described in Paragraph No. 5 and submits to IDEM the plan described in Paragraph No. 3, and IDEM issues a Resolution of Case (close out) letter.

 

Respondent is required to notify IDEM in writing, at the address specified in Paragraph 4 above, of the date on which all of the terms and conditions of this Agreed Order have been met.  While the Respondent may be required to provide updates to IDEM concerning the completion of individual terms and conditions, Respondent must provide IDEM with a written response identifying the specific date upon which all terms and conditions have been met that will be the last date of effectiveness for this Agreed Order.

 

REMAINDER OF PAGE INTENTIONALLY LEFT BLANK

 

TECHNICAL RECOMMENDATION:

RESPONDENT:

Department of Environmental Management

 

 

By: ________________________

By:  ________________________

Mark W. Stanifer, Chief

 

Water Enforcement Section

Printed: ______________________

Office of Water Quality

Title: ________________________

 

Date: __________________

Date: _______________________

 

COUNSEL FOR COMPLAINANT:

COUNSEL FOR RESPONDENT:

For the Department of Environmental Management

 

 

By: ____________________

By: ______________________

Deputy Attorney General

 

 

Date: _______________________

Date: ______________________

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS ______ DAY OF _____________________, 20___.

 

 

For the Commissioner:

 

 

Signed on March 13, 2012

 

Bruno Pigott

 

Assistant Commissioner

 

Office of Water Quality