STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT

) SS: OF ENVIRONMENTAL MANAGEMENT

COUNTY OF MARION )

COMMISSIONER OF THE DEPARTMENT )

OF ENVIRONMENTAL MANAGEMENT, )

)

Complainant, )

)

v. )

)

WESTOVER DEVELOPMENT ) CAUSE NO. 00-S-E-2526

CORPORATION, ) (B-2417/1998-4707-W)

)

)

Respondent. )

 

AGREED ORDER

The Complainant and the 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 IC 13-30-3-3(c), entry into this Agreed Order does not constitute admission of the alleged violations herein.

I. FINDINGS OF FACT

1. Complainant is the Commissioner (hereinafter referred to as AComplainant@) of the Indiana Department of Environmental Management, a department of the State of Indiana created by IC 13-13-1-1.

2. Respondent is Westover Development Corporation, which owns the subdivision development project, Westover Woods, Section I, (the AProject@), located along County Road 800 East, South of State Road 36, in Hendricks County, Indiana (hereinafter referred to as ARespondent@).

3. The Indiana Department of Environmental Management (AIDEM@) has jurisdiction over the parties and subject matter of this action.

4. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation (NOV) on April 7, 1999, via Certified Mail to:

Mr. William Schmadeke, President

Westover Development Corporation

Westover Woods, Section I

910 North Shadeland Avenue

Indianapolis, Indiana 46219

5. Pursuant to 327 IAC 15-5-2(1), (storm water run off associated with construction activity), the requirements under this rule apply to all persons who do not obtain an individual NPDES permit under 327 IAC 15-2-6.

6. Pursuant to 327 IAC 15-2-3, a general permit rule may regulate all designated categories of point sources for which a general permit rule exists.

7. Pursuant to 327 IAC 15-5-7, general conditions for construction activity erosion control measures state that the operator shall develop an erosion control plan in accordance with the requirements under this section. The erosion control plan must assure that erosion control measures are implemented and maintained, and that off-site sedimentation does not occur during the period of construction activity at a site. The operator shall maintain all erosion control measures necessary to meet the requirements of this rule.

8. Pursuant to IC 13-18-4-5, it is unlawful for any person to throw, run, drain, or otherwise dispose into any waters of the state, or to cause, permit, or suffer to be thrown, run, drain, allowed to seep, or otherwise disposed into any waters any organic or inorganic matter that shall cause or contribute to a polluted condition of any waters.

9. Pursuant to IC 13-30-2-1, 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.

10. 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 that will settle to form putrescent or otherwise objectionable deposits, that are in amounts sufficient to be unsightly or deleterious, that produce color, odor or other conditions in such degree as to create a nuisance, 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 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 impair the designated uses.

11. Violations of the above noted provisions of IC and IAC by the Respondent are based on the following inspections and findings of the record review:

12. On July 30, 1997 and again on August 12, 1997, the Project=s Erosion and Sediment Control Plan (the APlan@) was reviewed by the Hendricks County Soil and Water Conservation District (SWCD). The Plan was considered to be incomplete. Amendments were requested and deficiencies in the Plan were outlined and sent to the Respondent.

13. On September 18, 1997, Hendricks COUNTY SWCD and the Indiana Department of Natural Resources (IDNR) representatives conducted an On-site Evaluation for Erosion and Sediment Control at the Project site. Several deficiencies were observed and documented. The Hendricks COUNTY SWCD communicated the findings to the Respondent by mail on September 19, 1997.

14. On October 3, 1997, the Respondent was notified by telephone by IDNR of the deficiencies found during the On-site Evaluation for Erosion and Sediment Control at the Project.

15. On October 17, 1997, an On-site Evaluation for Erosion and Sediment Control was conducted by IDNR and a notice was sent to the Respondent indicating that no corrective measures have been taken since the inspection on September 18, 1997.

16. On April 28, 1998, an On-site Evaluation for Erosion and Sediment Control revealed that the Project site was not stabilized. It was noted that a large deposit of sediment was present in Clark=s Creek. It was also noted that on May 7, 1998, during a rain event, the IDNR Conservation Officer observed that the water in the creek above the Project site location was clear and was noted to be cloudy downstream from the Project site, thus indicating that sediment from Westover Woods, Section I was entering Clark=s Creek.

  1. On June 2, 1998, IDNR sent the Respondent a Warning of Noncompliance (WONC) Letter outlining the soil Erosion and Sediment Control Plan deficiencies at the Project site. No written response was received from the Respondent regarding the March 17, 1998 and May 28, 1998 inspections and the On-site Evaluations for Erosion and Sediment Control, however, Respondent took steps to correct most of the noted deficiencies.
  2. From the period of June 16, 1998 to November 19, 1998, representatives from IDNR conducted six inspections and completed On-site Evaluations for Erosion and Sediment Control. It was documented that the IDNR representatives found evidence that the Respondent was not implementing adequate erosion control measures, the outlets at the Project site were not stabilized and there was direct discharge of sediment to Clark=s Creek. The Respondent contends that at least some of the eroded sediment was carried through the development from erosion, upstream from the Respondent=s property.
  3. On September 20, 1999, Respondent supplied weather data to IDEM that indicates above normal wet weather and wet soil conditions.
  4. On October 15, 1999, IDNR reviewed and approved the Respondent=s complete Soil Erosion Control Plan, which included the engineered erosion resistant outlet. The Respondent was instructed by IDNR to proceed with the outlet installation as soon as possible.
  5. On February 14, 2000, IDNR informed the Respondent that the pipe structure had been installed as shown or similar to the Plan submitted. The installation appeared to be adequately protected to prevent further erosion.
  6. On May 16, 2000, IDEM issued to the Respondent a Notice and Order of the Commissioner of the Department of Environmental Management ("Commissioner’s Order"). Since the issuance of the Notice of Violation, the Respondent has stabilized the site and achieved compliance with the applicable rules. Therefore, the Commissioner’s Order only contained a provision regarding the assessed civil penalty.
  7. On June 5, 2000, the Respondent filed a Petition for Review of the Commissioner’s Order with the Office of Environmental Adjudication.
  8. Since June 5, 2000, the parties have been involved in the discovery process. Negotiations have been ongoing in this matter. On November 29, 2000, the parties have reached a settlement agreement.
  9. 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 (AEffective Date@) when it is approved by the Complainant or her delegate, and has been received by the Respondent. This Agreed Order shall have no force or effect until the Effective Date.
  1. Respondent is assessed a civil penalty of Twelve Thousand, Five Hundred Dollars ($12,500). Said penalty amount shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the Effective Date of this Agreed Order.

3. Civil penalties are payable by check to the Environmental Management Special Fund.

                  1. Checks shall include the Cause Number of this action and shall be mailed to:

Cashier

Indiana Department of Environmental Management

100 N. Senate Avenue

P. O. Box 7060

Indianapolis, IN 46207-7060

4. In the event that the civil penalty required by Paragraph 3 is not paid within thirty (30) days of the Effective Date of this Agreed Order, 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.

5. This Agreed Order shall apply to and be binding upon the Respondent, its officers, directors, principals, agents, successors, subsidiaries, and assigns. The Respondent's signatories to this Agreed Order certify that they are fully authorized to execute and legally bind the parties they represent. No change in ownership, corporate, or partnership status of the Respondent shall in any way alter its status or responsibilities under this Agreed Order.

6. In the event that any terms of the 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 the Agreed Order did not contain the invalid terms.

7. The 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 shall remain in effect until the Respondent has paid the civil penalty in Paragraph 2 and IDEM issues a resolution of cause or Aclose out@ letter to the Respondent in this cause.

TECHNICAL RECOMMENDATION: RESPONDENT:

Department of Environmental Management

By: By:

Mark W. Stanifer, Chief

Water Enforcement Section

Office of Enforcement

Date: Date:

 

LEGAL RECOMMENDATION: COUNSEL FOR RESPONDENT:

Department of Environmental Management

By: By:

Sierra L. Cutts, Attorney

Office of Legal Counsel

Department of Environmental Printed:

Management

Date: Date:

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT

THIS 11th DAY OF May , 2000.

 

FOR THE COMMISSIONER:

 

 

 

Signed by Felicia A. Robinson

Felicia A. Robinson

Assistant Commissioner of Enforcement