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STATE
OF INDIANA |
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BEFORE
THE INDIANA DEPARTMENT |
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COMMISSIONER
OF THE DEPARTMENT Complainant, v. The stonegate development of winfield, llc, 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. 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 The Stonegate Development of Winfield, LLC (Respondent), which owns/operates
the Stonegate North Subdivision (Phases 1, 3, 4, & 5) development site,
located at or near 12617 Randolph St, in Crown Point, Lake County, Indiana (the
Site).
3.
Respondent
is authorized by National Pollutant Discharge Elimination System (NPDES)
General Permit Numbers INR10M243 (Phase 1), INR10P634 (Phase 3), INRA01726
(Phase 4 & 5) (the Permits) to discharge storm water associated with
construction activity at the Site in compliance with the requirements of 327
Indiana Administrative Code (IAC) 15-5 (Rule 5), any local storm water permits,
and following the measures identified in Respondent’s construction plan.
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:
|
Peter
Manhard, Manager The Stonegate
Development of Winfield, LLC 900 Woodlands
Pkwy Vernon Hills,
IL 60061 |
KBP Agent,
Inc. Registered
Agent 425 Joliet
Street Suite 425 Dyer, IN
46311 |
6.
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 327 IAC 15-5-5, a rule adopted by the board
under the environmental management laws.
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 do any of the following:
(A)
Will
settle to form putrescent or otherwise objectionable deposits;
(B)
Are
in amounts sufficient to be unsightly or deleterious;
(C)
Produce
color, visible oil sheen, odor, or other conditions in such degree as to create
a nuisance;
(D)
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 otherwise impair the designated uses; and
(E)
Are
in amounts sufficient to be acutely toxic to, or to otherwise severely injure
or kill aquatic life, other animals, plants, or humans.
Phase
1: As noted during each inspection conducted on August 15, August 22, and December
2, 2016, March 17, May 24, July 25, August 16, October 19, and November 7,
2017, and January 11, May 3, May 17, and May 29, 2018, Respondent allowed
conditions to exist that resulted in, or had the potential to result in,
sediment discharges with storm water run-off, which caused or contributed to a
polluted condition of waters of the state by allowing sediment to reach
un-named tributaries of Deer Creek and an un-named tributary of E Br Stoney
Run, and an isolated wetland west of Basin A, in violation of IC 13-30-2-1(1)
and 327 IAC 2-1-6(a)(1).
Phase
3: As noted during each inspection conducted on October 19, November 7, and December
5, 2017, and January 11, May 3, May 17, May 29, August 27, September 10, and
September 26, 2018, Respondent allowed conditions to exist that resulted in, or
had the potential to result in, sediment discharges with storm water run-off,
which caused or contributed to a polluted condition of waters of the state by
allowing sediment to reach un-named tributaries of Deer Creek and an isolated
wetland west of Basin A, in violation of IC 13-30-2-1(1) and 327 IAC
2-1-6(a)(1).
Phases
4 & 5: As noted during each inspection conducted on August 27, September
10, and September 26, 2018, Respondent allowed conditions to exist that resulted
in, or had the potential to result in, sediment discharges with storm water
run-off, which caused or contributed to a polluted condition of waters of the
state by allowing sediment to reach un-named tributaries of Deer Creek, in
violation of IC 13-30-2-1(1) and 327 IAC 2-1-6(a)(1).
7.
Pursuant
to 327 IAC 15-5-2 (d)(1), the project site owner shall complete and submit a
Notice of Intent (NOI) and Construction Plan in accordance of Section 6 of this
rule.
Pursuant
to 327 IAC 15-5-5 (a)(1-14), a complete NOI letter must meet all requirements
in accordance of 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, all NOI letter information required under Section 5 of this rule
shall be submitted to the commissioner at least forty-eight (48) hours prior to
the initiation of land disturbing activities at the site.
Phase
3: Respondent failed to submit a complete NOI at least forty-eight (48) hours
prior to the initiation of land disturbing activities, in violation of 327 IAC
15-5-2 (d)(1), 327 IAC 15-5-5 (a)(1-10)(12-14), and 327 IAC 15-5-6 (a).
Respondent
submitted the Phase 3 NOI on September 8, 2017.
8.
Pursuant
to 327 IAC 15-5-6 (b)(1), a project site where the proposed land disturbance is
one (1) acre or more as determined under section 2 of this rule, the following
requirements must be met:
(1)
A
construction plan must be submitted according to the following:
(A)
Prior
to the initiation of any land disturbing activities.
(B)
Sent
to the appropriate Soil and Water Conservation District (SWCD) or other entity
designated by the department for:
(i)
Review
and verification that the plan meets the requirements of the rule; or
(ii) A single coordinated review in
accordance with subsection (d)(3) if:
(a) the construction activity will occur in
more than one (1) SWCD; and
(b) the project site owner has made a
request for a single coordinated review.
Pursuant
to 327 IAC 15-5-6 (b)(2), if the construction plan required by subdivision (1)
is determined to be deficient, the SWCD, or other entity designated by the
department as the reviewing agency may require modifications, terms, and
conditions as necessary to meet the requirements of the rule. The initiation of
construction activity following notification by the reviewing agency that the
plan does not meet the requirements of the rule is a violation and subject to
enforcement action. If notification of a deficient plan is received after the
review period outlined in subdivision (3) and following commencement of
construction activities, the plans must be modified to meet the requirements of
the rule and resubmitted within fourteen (14) days of receipt of the
notification of deficient plans.
Phase
3: During an inspection conducted on July 25, 2017, IDEM staff discovered land
disturbing activities to be more than one acre. Respondent failed to submit a
construction plan and receive approval from SWCD prior to initiating land
disturbing activities, in violation of 327 IAC 15-5-6 (b)(1) and 327 IAC 15-5-6
(b)(2).
9.
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 general
requirements for storm water quality control.
Phase
1: As noted during each inspection conducted on August 15, August 22, 2016, and
August 16, 2017, and January 11, May 3, May 17, May 29, June 20, July 20,
August 7, August 16, August 27, September 10, and September 26, 2018,
Respondent failed to implement appropriate storm water quality measures in
accordance with the construction plan and sufficient to meet the requirements
of this rule, in violation of 327 IAC 15-5-7(a) and 327 IAC 15-5-7(b).
Phase
3: As noted during each inspection conducted on October 19, November 7, and December
5, 2017, and January 11, May 3, May 17, May 29, June 20, July 20, August 7,
August 16, August 27, September 10, and September 26, 2018, Respondent failed
to implement appropriate storm water quality measures in accordance with the
construction plan and sufficient to meet the requirements of this rule, in
violation of 327 IAC 15-5-7(a) and 327 IAC 15-5-7(b).
Phases
4 & 5: As noted during each inspection conducted on August 7, August 16,
August 27, September 10, and September 26, 2018, Respondent failed to implement
appropriate storm water quality measures in accordance with the construction
plan and sufficient to meet the requirements of this rule, in violation of 327
IAC 15-5-7(a) and 327 IAC 15-5-7(b).
10.
Pursuant
to 327 IAC 15-5-7 (b) (1 and 15), a project site owner shall, at least, meet
the following requirements:
(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.
(15)
natural features, including wetlands and sinkholes, shall be protected from
pollutants associated with storm water run-off.
Phase
1: As noted during each inspection conducted on August 15, August 22, and December
2, 2016, March 17, May 24, July 25, August 16, October 19, and November 7,
2017, and January 11, May 3, May 17, and May 29, 2018, Respondent failed to
implement measures that minimized sediment discharges of run-off that occurred
to off-site areas including a receiving stream or natural feature identified as
the Kankakee watershed, in violation of 327 IAC 15-5-7 (b) (1 and 15).
Phase
3: As noted during each inspection conducted on October 19, November 7, and December
5, 2017, and January 11, May 3, May 17, May 29, August 27, September 10, and
September 26, 2018, Respondent failed to implement measures that minimized
sediment discharges of run-off that occurred to off-site areas including a
receiving stream or natural feature identified as the Lake Michigan watershed,
in violation of 327 IAC 15-5-7 (b) (1 and 15).
Phases
4 & 5: As noted during each inspection conducted on August 27, September
10, and September 26, 2018, Respondent failed to implement measures that
minimized sediment discharges of run-off that occurred to off-site areas including
a receiving stream or natural feature identified as the Lake Michigan
watershed, in violation of 327 IAC 15-5-7 (b) (1 and 15).
11.
Pursuant
to 327 IAC 15-5-7 (b)(6), the project site owner shall post a notice near the
main entrance of the project site. For linear project sites, the notice must be
placed in a publicly accessible location near the project field office. The
notice must be maintained in legible condition and contain the following
information:
(A)
Copy
of the completed NOI letter and the NPDES permit number, where applicable.
(B)
Name,
company name, telephone number, and address of the project site owner or a
local contact person.
(C)
Location
of the construction plan if the project site does not have an on-site location
to store the plan.
Phase
1: As noted during each inspection conducted on August 15, August 22, December
2, 2016, and October 19, November 7, December 5, 2017, and January 11, May 3,
May 17, May 29, June 20, July 20, August 7, August 16, and August 27, 2018,
Respondent failed to post project information as required by the rule by
failing to address the proper permit number on the notice, in violation of 327
IAC 15-5-7 (b)(6).
Phase
3: As noted during each inspection conducted on July 25, August 16, October 19,
November 7, and December 5, 2017, Respondent failed to post project information
as required by the rule by failing to address the proper permit number on the
notice, in violation of 327 IAC 15-5-7 (b)(6).
Phases
4 & 5: As noted during each inspection conducted on July 20, August 7,
August 16, August 27, September 10, and September 26, 2018, Respondent failed
to post project information as required by the rule by failing to address the
proper permit number on the notice, in violation of 327 IAC 15-5-7 (b)(6).
12.
Pursuant
to 327 IAC 15-5-7 (b)(18)(A), (B), (C), and (D), a self-monitoring program that
includes the following must be implemented:
(A)
A
trained individual shall perform a written evaluation of the project site:
i. By the end of the next business day
following each measurable storm event; and
ii. At minimum of one (1) time per week.
(B) The
evaluation must:
i. Address the maintenance of existing
storm water quality measures to ensure they are functioning properly, and
ii. Identify additional measures necessary
to remain in compliance with all applicable statutes and rules
(C) Written evaluation reports must include:
i. The name of the individual performing
the evaluation;
ii. The date of the evaluation;
iii. Problems identified at the project site;
and
iv. Details of corrective actions
recommended and completed.
(D) All
evaluation reports for the project site must be made available to the
inspecting authority within forty-eight (48) hours of a request.
Respondent
failed to implement a self-monitoring program according to the requirements of
these rules, in violation of 327 IAC 15-5-7 (b)(18)(A), (B), (C), and (D).
Respondent
has historically not conducted the self-monitoring program on a regular basis.
The frequency of reporting was often one (1) to three (3) times per month. The
self-monitoring reports submitted included the monitoring of all three (3)
permits under one (1) report that was identified with only the permit number
INR10M243. Self-monitoring reports must identify the permits that are being
monitored.
On
July 3, 2018, Respondent began submitting self-monitoring reports on a regular
basis.
13.
Pursuant
to 327 IAC 15-5-7.5, all storm water quality measures, including erosion and
sediment control, necessary to comply with this rule must be implemented in
accordance with the plan and sufficient to satisfy subsection (b) of this Rule.
Subsection (b) is related to provisions for erosion and sediment control on
individual building lots.
Phase
1: As noted during each inspection conducted on July 25, August 16, October 19,
and November 7, 2017, and May 17, May 29, June 20, July 20, August 7, August
16, August 27, September 10, and September 26, 2018, Respondent failed to
implement and maintain erosion and sediment control measures on individual lots
within the permitted site, in violation of 327 IAC 15-5-7.5.
Phase
3: As noted during each inspection conducted on June 20, July 20, August 7,
August 16, August 27, September 10, and September 26, 2018, Respondent failed
to implement and maintain erosion and sediment control measures on individual
lots within the permitted site, in violation of 327 IAC 15-5-7.5.
14.
On
March 8, 2019, Respondent submitted a response to the Notice of Violation. The
response detailed the actions Respondent implemented to meet the rules and
regulations. However, violations still persisted at the Site. The Respondent is
currently working towards compliance.
15.
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 6 through 13 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 statutes, rules, and permit conditions as listed in the
findings here and/or above at issue.
3.
Within thirty (30) days of the Effective Date, Respondent shall install appropriate
erosion and sediment control measures necessary to comply with 327 IAC 15-5-7
and must be implemented in accordance with the construction plans and
sufficient to satisfy subsection (b).
4.
Within thirty (30) days of the Effective Date,
Respondent shall implement a self-monitoring program as required by 327 IAC
15-5-7(18), including ensuring that a trained individual performs a written
evaluation of the project site by the end of the next business day following
each measurable storm event; and at a minimum of one time per week, in order to
determine whether the erosion and sediment controls are:
A.
Properly installed and maintained; and
B.
Adequate to ensure compliance with the
requirements of 327 IAC 15-5-7 and to prevent sediment from leaving the site
and entering or threatening to enter waters of the state.
For the purposes of this Agreed
Order, a “measurable storm event” is defined as a precipitation event that
results in a total measured precipitation accumulation equal to or greater than
0.50 inch of rainfall.
5.
Within sixty (60) days of the Effective Date, Respondent
shall take all actions necessary to correct the deficiencies found during the
inspections of the Site. Such actions may include, but are not necessarily
limited to, removal of accumulated sediment from behind sediment control
measures, including silt fence and storm inlets, assurance that conveyance channels
and swales are stabilized, removal of construction and other debris, stop
petroleum releases from equipment, and installation of additional erosion and
sediment control measures as required to minimize sediment impacts.
6.
Respondent shall maintain and provide upon
request, records of the inspections conducted pursuant to Order Paragraph 4 and
corrective actions taken pursuant to Order Paragraph 5. The records shall
include, but not necessarily be limited to:
A.
The date and time of inspection;
B.
The weather conditions at the time of the
inspection;
C.
The name of the individual conducting the
inspection;
D.
A description of observations made during the
inspection, specifically including a description of any deficiencies that were
found; and
E.
A description of the corrective actions taken
as a result of deficiencies found during the inspection.
7.
Within ten (10) days of the Effective Date and
continuing weekly until directed otherwise by IDEM, Respondent shall submit the
self-monitoring reports required in Order Paragraph 6 to the address listed in
Order Paragraph 10.
8. Respondent shall post all items as
required by 327 IAC 15-5-7(b)(6) near the main entrance of the Site.
9. The requirements of Order Paragraphs 3
through 8 shall remain in effect until the earlier of:
A.
Respondent submits notification of termination
of construction activity pursuant to 327 IAC 15-5-8 for the Site, or
B.
One year has passed from the effective date of
this Agreed Order,
and a representative of IDEM evaluates the
project site to determine if eligibility for termination has been met in
accordance with 327 IAC 15-5-8(b).
10.
All
submittals required by this Agreed Order, unless Respondent is notified
otherwise in writing by IDEM, shall be sent to:
|
Brandi
Collignon, Enforcement Case Manager |
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bcollign@idem.in.gov |
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Office
of Water Quality – IGCN 1255 |
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Indiana
Department of Environmental Management |
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100
North Senate Avenue |
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Indianapolis,
IN 46204-2251 |
11.
Respondent
is assessed and agree to pay a civil penalty of Eighteen Thousand, One Hundred
Fifty Dollars ($18,150). 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.”
12.
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 |
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3 |
Failure
to implement appropriate erosion and sediment control measures to minimize
off-site sediment discharge. |
$500
per week late, or part thereof. |
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4 |
Failure
to implement a self-monitoring program as required in 327 IAC 15-5-7(18). |
$500
per week late, or part thereof. |
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5 |
Failure
to correct the deficiencies noted in the self-monitoring program required in
Order Paragraph 4. |
$250
per violation. |
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6 |
Failure
to maintain or provide records of the self-monitoring program inspections and corrective actions. |
$250
per violation. |
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7 |
Failure
to submit weekly self-monitoring reports as required. |
$150
per violation. |
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8 |
Failure to post a notice of Permit
coverage near the main entrance of the Site. |
$150
per week late, or part thereof. |
13.
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.
14.
Civil
and stipulated penalties are payable by check to the “Environmental Management
Special Fund.” Checks shall include the Case Number 2018-25518-Q of this action
and shall be mailed to:
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Office
of Legal Counsel |
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Indiana
Department of Environmental Management |
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IGCN,
Room N1307 |
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100
North Senate Avenue |
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Indianapolis,
IN 46204 |
15.
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 its status or responsibilities under this
Agreed Order.
16.
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 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.
17.
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.
18.
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.
19.
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.
20.
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.
21.
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.
22.
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.
23.
This
Agreed Order shall remain in effect until Respondent has complied with all
terms and conditions of this Agreed Order and IDEM issues a Resolution of Case
(close out) letter to Respondent.
REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK.
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TECHNICAL
RECOMMENDATION: |
RESPONDENT: |
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Department of
Environmental Management |
The
Stonegate Development of Winfield, LLC |
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By:___________________________ |
By:_________________________ |
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Samantha K. Groce, Chief |
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Water Enforcement Section |
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Surface
Water, Operations & |
Printed:_____________________ |
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Enforcement
Branch |
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Office
of Water Quality |
Title:_______________________ |
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Date:_________________________ |
Date:_______________________ |
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COUNSEL FOR
RESPONDENT: |
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By:________________________ |
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Date:______________________ |
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APPROVED AND
ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT
THIS ___________ DAY OF ________________, 20___. |
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For The
Commissioner: |
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Signed on April 9, 2019 |
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Martha Clark
Mettler |
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Assistant
Commissioner |
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|
Office of
Water Quality |