STATE OF INDIANA	)	SS:	BEFORE THE INDIANA DEPARTMENT OF
	)		ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION	)
COMMISSIONER OF THE DEPARTMENT				)
OF ENVIRONMENTAL MANAGEMENT,				)
				)
Complainant,				)
				)
v.				)	Case No. 2018-25160-Q
				)
Mr. Tom Graziani,				)
				)
Respondent.				)

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 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. Tom Graziani (Respondent), owns the property located at 1349 Casco Bay Circle, Cicero, Hamilton County, Indiana (the Site), of which the western property line borders the Morse Reservoir.

3. The Morse Reservoir is considered a waters of the state as described in Indiana Code (IC) 13-11-2-265(a) and (c).

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

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

Tom A. Graziani, Property Owner

1349 Casco Bay Circle

Cicero, Indiana 46034

6. The authority of IDEM to regulate the discharge of fill material into waters of the state is granted by IC 13-13-5-1.

7. Pursuant to Section 404 of the Clean Water Act (33 United States Code (U.S.C.) 1341), which provides for IDEM to administer its own 401 Water Quality Certification Program for projects that impact waters of the state, the 401 Water Quality Certification outlines compensation requirements for the loss of function including the restoration success criteria, deed restriction, and a Monitoring Plan.

Respondent did not obtain a Section 401 Water Quality Certification or an approval under a Regional General Permit (RGP) for the broken concrete fill placed in the Morse Reservoir at the Site, affecting approximately 25 linear feet of the shoreline, in violation of 33 U.S.C. 1341 and 401 Water Quality Certification Program.

8. Pursuant to IC 13-18-4-5, a person may not throw, run, drain, or otherwise dispose; or cause, permit, or suffer to be thrown, run, drained, allowed to seep, or otherwise disposed; into any of the streams or waters of Indiana any organic or inorganic matter that causes or contributes to a polluted condition of any of the streams or waters of Indiana.

Pursuant to 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 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.

Pursuant to 327 Indiana Administrative Code (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 do any of the following:

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 a degree as to create a nuisance, be unsightly, or otherwise impair the designated uses.

During an inspection conducted on November 6, 2017, IDEM staff observed and documented broken concrete fill placed in the Morse Reservoir at the Site, affecting approximately 25 linear feet of the shoreline, in violation 327 IAC 2-1-6(a)(1), IC 13-30-2-1, and IC 13-18-4-5.

9. On November 21, 2017, IDEM sent an “Inspection Summary/Non-Compliance” letter to Respondent outlining violations with a thirty (30) day response deadline. The letter required either the affected area be restored or a “Section 401 Water Quality Certification Regional General Permit Notification” form (the Form) be submitted. No response was received.

10. On January 5, 2018, IDEM issued a “Second Notice of Non-Compliance” letter to Respondent with a ten (10) day response deadline. The letter required either the affected area be restored or the Form be submitted. No response was received.

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 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. In addition to addressing the violations cited in Paragraphs 7 and 8 of the Findings of Fact above, this Agreed Order also addresses any additional violations of these same rules that may have occurred subsequent to the issuance of the NOV and prior to the Effective Date.

2. Respondent shall comply with rules and statutes listed in the findings above at issue.

3. Respondent shall cease and desist further land disturbing activities in all waters of the state until proper authorization has been granted.

4. Within 30 days of the Effective Date, Respondent shall apply for and receive an after-the-fact (ATF) certification, by means of the Form, from IDEM for activities at the Site.

5. The Form and, if applicable, a mitigation plan are subject to IDEM approval. In the event IDEM determines the Form or plan submitted by Respondent are deficient or otherwise unacceptable, Respondent shall revise and resubmit the Form or plan to IDEM in accordance with IDEM’s notice. After three submissions of such Form or plan by Respondent, IDEM may seek civil enforcement of this Agreed Order.

6. Upon receipt of written notification from IDEM and/or U.S. Army Corps of Engineers (USACE) of approval, Respondent shall immediately implement the approved ATF certification and adhere to the milestone dates therein. The approved ATF certification shall be incorporated into the Order and shall be deemed an enforceable part thereof.

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

Olivia Kuss, Enforcement Case Manager

Office of Water Quality – IGCN 1255

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

8. 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 cease and desist further land disturbing activities in waters of the state until authorization has been granted.	$500 per violation.
4	Failure to apply for an after-the-fact (ATF) certification within 30 days of Effective Date.	$500 per week late.
5	Failure to comply with any or all of the requirements of this paragraph.	$500 per violation.
6	Failure to implement the ATF Permit work and adhere to the milestone dates therein.	$500 per violation.

9. Stipulated penalties shall be due and payable no later than the 30^th day after Respondent receives written notice that IDEM has determined a stipulated penalty is due, the 30^th 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.

10. Stipulated penalties are payable by check to the “Environmental Management Special Fund.” Checks shall include the Case Number 2018-25167-Q of this action and shall be mailed to:

Office of Legal Counsel

Indiana Department of Environmental Management

IGCN, Room N1307

100 North Senate Avenue

Indianapolis, IN 46204

11. This Agreed Order shall apply to and be binding upon Respondent and their successors and assigns. Respondent’ 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.

12. 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. The interest shall be computed as having accrued from the Due Date until the date that Respondent pay 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.

13. 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.

14. 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 their obligation to comply with the requirements of its 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’ 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’ 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 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 EPA or any other agency or entity.

19. This Agreed Order shall remain in effect until Respondent have complied with all terms and conditions of this Agreed Order and IDEM issues a Resolution of Case (close out) letter to Respondent.

REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK

TECHNICAL RECOMMENDATION:	RESPONDENT:
Department of Environmental Management	Tom A. Graziani
By:__________________________	By:________________________
Samantha K. Groce, Chief
Water Enforcement Section
Surface Water, Operations &	Printed:_____________________
Enforcement Branch
Office of Water Quality	Title:_______________________
Date:________________________	Date:_______________________
	COUNSEL FOR RESPONDENT:
	By:________________________
	Date:______________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS ___________ DAY OF ________________, 20___.
	For The Commissioner:
	Signed on February 15, 2019
	Martha Clark Mettler
	Assistant Commissioner
	Office of Water Quality