STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT

) SS: OF ENVIRONMENTAL MANAGEMENT

COUNTY OF MARION )

COMMISSIONER OF THE DEPARTMENT )

OF ENVIRONMENTAL MANAGEMENT, )

)

Complainant, )

)

v. ) CAUSE NO. B-2429

)

RAMSEY DEVELOPMENT CORP., )

)

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, entry into the terms of this Agreed Order does not constitute an admission of the violations contained herein.

I. FINDINGS OF FACT

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

2. Respondent is Ramsey Development Corp. (Respondent), who owns and operates the Royal Care Health Care Facility construction project, general permit number INR100214, located approximately 3/4 mile west of intersection of State Road 46 and U.S. 231, Spencer, Owen County, Indiana.
  1. The Indiana Department of Environmental Management ("IDEM") has jurisdiction over the parties and subject matter of this action.

    2.  

  2. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation via Certified Mail to:

    3. Chris A. Ramsey, President & Registered Agent

    Ramsey Development Corp.

    P.O. Box 97

    Tell City, Indiana 47586

  3. 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.
  4. Pursuant to 327 IAC 15-5-2(1), storm water run off associated with construction activity, this rule applies to all persons who do not obtain an individual NPDES permit under 327 IAC 15-2-6.
  5. Pursuant to 327 IAC 15-5-2(2), storm water run off associated with construction activity, this rule applies to all persons who meet the general permit rule applicability requirement under 327 IAC 15-2-3.
  6. Pursuant to 327 IAC 15-5-2(3), storm water run off associated with construction activity, this rule applies to all persons who are involved in construction activity, which includes clearing, grading, excavating, and other land disturbing activities, except operations that result in the disturbance of less than five (5) acres of total land area and which are not part of a larger common plan of development or sale.
  1. The Royal Care Health Care Facility involves construction activity of more than five (5) acres of total land area and therefore is regulated by a general permit pursuant to 327 IAC 15-2-3 and must comply with 327 IAC 15-5.
  2. Pursuant to 327 IAC 15-5-10(c), if maintenance of remaining erosion control measures is not properly maintained by the person operating the property, the commissioner may pursue enforcement against that person for correction of deficiencies under 327 IAC 15-1-4.
  3. 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. All erosion control measures necessary to meet the requirements of this rule shall be maintained by the operator.
  4. On August 26, 1997, IDEM, Office of Water Management issued a Warning of Noncompliance (WONC) letter to the Respondent requesting that the Respondent comply with the IDNR=s inspection conducted on July 2, 1997, requiring that all soil erosion control measures meet the requirements of construction activities at the site. The WONC also noted that the Soil Erosion Control Plan (SECP) submitted for review was deficient and the required information was late. No written response to the WONC was received by IDEM, in violation of 327 IAC 15-5-7.
  5. On October 23, 1997, IDEM sent the Respondent a Notice of Sufficiency for complying with the requirements of the Notice of Intent (NOI) letter. IDEM=s letter stated that in accordance with requirements of 327 IAC 15-5-10, the Respondent is required to implement the SECP, maintain the erosion control structures until the project is complete, and amend the NOI as dates or other facts are altered. Although the Respondent signed the NOI certifying that they received approval for Royal Care Health Care Facility=s SECP and will implement the SECP accordingly, they did not receive approval for or implement the SECP, or amend the NOI to reflect changes in the completion date of the project, in violation of 327 IAC 15-5-7.
  6. Inspections of the Royal Care Health Care Facility construction project by the Indiana Department of Natural Resources (IDNR), Division of Soil Conservation staff conducted on July 2, 1997, March 26, 1998, July 14, 1998, August 26, 1998, November 12, 1998, December 18, 1998, January 22, 1999, April 5, 1999 and June 3, 1999, indicate that the site conditions were not considered Asatisfactory.@ Therefore, the Respondent has violated provisions of 327 IAC 15-5-7, as follows:

    7. Seven (7) inspection reports noted that disturbed areas have not been adequately protected through seeding or other appropriate erosion and sediment control measures.

    Eight (8) inspection reports noted that appropriate perimeter sediment control measures have not been implemented.

    Seven (7) inspection reports noted that conveyance channels have not been stabilized or protected with appropriate sediment control measures.

    Seven (7) inspection reports noted that erosion and sediment control measures not are properly installed.

    Six (6) inspection reports noted those storm drain inlets have not been adequately protected.

    Six (6) inspection reports noted that outlets have not been adequately stabilized.

    Seven (7) inspection reports noted that the existing erosion and sediment control measures are not maintained.

    Two (2) inspection reports noted that public and private roadways are not kept clear of accumulated sediment or tracked soil.

  7. Pursuant to 327 IAC 15-5-6, all information required under 327 IAC 15-3 and section 5 of this rule shall be submitted to the commissioner prior to the initiation of land disturbing activities.
  8. On June 17, 1997, IDEM received the NOI from the Respondent indicating that construction activity was to commence on June 16, 1997, and end on July 31, 1997. Although this office has not determined the exact date that construction activities began, IDNR conducted a site visit on July 2, 1997, noting that construction was under way and the site conditions presented high potential for off-site sedimentation. The contractor present at the site inspection stated that he had not received the SECP. He therefore, did not know what he was supposed to do for erosion control. The August 26, 1997, IDEM issued WONC also indicated that the NOI was determined to be deficient, in violation of 327 IAC 15-2-5, 327 IAC 15-5-6 and 327 IAC 15-5-7.
  9. Pursuant to 327 IAC 15-2-5(a), any person subject to the requirements of this article shall submit a Notice of Intent (NOI) letter that complies with this section.
  10. Pursuant to 327 IAC 15-2-5(b), an NOI letter shall be submitted to the commissioner by the time specified under 327 IAC 15-3, or the time indicated in the applicable general permit rule.
  11. On July 16, 1997, IDEM sent the Respondent a Notice of Deficiency (NOD) outlining the items that were missing in the NOI letter submitted to IDEM on June 17, 1997, in violation of 327 IAC 15-2-5(a) and 327 IAC 15-2-5(b).
  12. Pursuant to 327 IAC 15-4-3(g), the owner/operator or a corporate officer representing him or her is required to sign the NOI.
  13. Pursuant to 327 IAC 15-5-8, the operator shall plan an orderly and timely termination of the land disturbing activities which shall include the implementation of erosion control measures which are to remain on the site. The commissioner may, subsequent to termination of a project, inspect the site to evaluate adequacy of the remaining erosion control measures.
  1. On December 24, 1998, the Notice of Termination (NOT) was submitted by the Respondent before orderly and timely termination of the land disturbing activities occurred, including implementation of permanent erosion control measures. As required by 327 IAC 15-5-11-11, the Respondent signed the NOT indicating that, ANo future land disturbing activities will take place on this project . . . For all future construction projects disturbing more than 5 acres of total land area, an NOI will be submitted prior to earth disturbing activity, in compliance with 327 15-5 (Rule 5).@ As evidenced by IDNR=s inspection reports from July 2, 1997, March 26, 1998, July 14, 1998, August 26, 1998, November 12, 1998, December 18, 1998, January 22, 1999, April 5, 1999, June 3, 1999 and April 3, 2000, construction continued after the submission of the NOT. To date, the Respondent has not submitted a new NOI for construction activities after December 24, 1998, to notify IDEM that the construction continued through December 1999, in violation of 327 IAC 15-5-8.
  2. On April 3, 2000, representatives of IDNR visited Royal Care Health Care Facility and noted that construction has ceased at the site. It was also noted that the site was stabilized and permanent soil erosion control measures were in place.
  3. 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 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.
  2. Respondent is assessed a civil penalty of Six Thousand, Five Hundred Dollars ($6,500). 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. The civil penalty is payable by check to the Environmental Management Special Fund. Checks shall include the Cause Number of this action and shall be mailed to:

    4. 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 2 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 this document 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 to the Subdivision 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 Complainant issues a Resolution of Cause letter.

TECHNICAL RECOMMENDATION: RESPONDENT:

Department of Environmental Management

By: _________________________ By: ___________________________

Mark W. Stanifer, Chief

Office of Enforcement Printed: _________________________

Title: __________________________

Date: _________________________ Date: __________________________

COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:

Department of Environmental Management

By: _______________________ By: __________________________

Sierra L. Cutts, Attorney

Office of Legal Counsel

Department of Environmental Management

Date: _______________________ Date: __________________________

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS 17th DAY OF November , 2000.

 

For the Commissioner:

 

_____________________________

Felicia A. Robinson

Assistant Commissioner of Enforcement