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Comm=
issioner,
Indiana Department of Environmental Management, v.
2010=
OEA
36, (06-W-E-3854)
[2010 OEA 36, page 36 begins]
O=
FFICIAL
SHORT CITATION NAME: When referring to 2010 OEA 36, cite thi=
s case
as &nbs=
p;
IDEM =
v.
TOPICS=
:
327 IAC 2-1-6 &nb=
sp; =
&nb=
sp; =
wetland=
327 IAC 5-2-=
2 &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; &=
nbsp; lake
327 IAC 15-2=
&=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; &=
nbsp; surface
water
327 IAC 15-5 &nb= sp; = &nb= sp; = &nb= sp; Rule 5
I.C. §
13-18-4-5 &nbs=
p; &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; general
permit
I.C. §
13-30-2-1 &nbs=
p; &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; individual
permit
I.C. §
13-30-3-3 &nbs=
p; &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; mediation
I.C. §
13-30-3-4 &nbs=
p; &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; Summary
Judgment
Ind. Trial Rule 36(A) &nbs=
p; &=
nbsp; &nbs=
p; &=
nbsp; =
span>Request for Admissions
Civil Penalty
Policy =
&nb=
sp; =
&nb=
sp; Pro
se litigant
construction=
&=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; &=
nbsp; storm
water
sedimentatio=
n &=
nbsp; &nbs=
p; &=
nbsp; &nbs=
p; &=
nbsp; off-site
Notice of
Termination (NOT) &n=
bsp;  =
; &n=
bsp; erosion
control measures &nb=
sp;
Notice of In=
tent
(NOI) &n=
bsp;  =
; &n=
bsp;
National Pol=
lution
Discharge Elimination System (NPDES)
PRESID=
ING
JUDGE:
Mary L. Davi=
dsen
PARTY
REPRESENTATIVES=
:
IDEM: &n=
bsp; Den=
ise
A. Walker, Esq.
Petitioner: =
Michael
Leckner, Holly Boyd
ORDER =
ISSUED:
April 5, 201=
0
INDEX
CATEGORY:
Water
FURTHER C=
ASE
ACTIVITY:
[none]
[2010 OEA 36, page 37 begins]
STATE
OF
= &nb= sp; = = &= nbsp; ) = ENVIRONMENTAL ADJUDICATION
COUNTY OF
IN THE MATTER OF: = ; &n= bsp;  = ; &n= bsp; ) &= nbsp;
&nbs= p; &= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; &nbs= p; ) &= nbsp; &nbs= p; &= nbsp; &nbs= p;
COMMISSIONER, INDIANA DEPARTMENT )
OF ENVIRONMENTAL MANAGEMENT = )
 = ; Complainant, &= nbsp; &nbs= p; &= nbsp; &nbs= p; )
)<= /p>
 = ; v. &= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; ) &= nbsp; Cause No. 06-W-E-3854
 = ; &n= bsp;  = ; &= nbsp; &nbs= p; &= nbsp; &nbs= p; )
JIMMERSON BAY DEVELOPERS, LLC, = )
IDEM Case No. 2005-14490-W = &nb= sp; )
ANGOLA, STEUBEN COUNTY, INDIANA &= nbsp; )
Respondent &= nbsp; &nbs= p; &= nbsp; &nbs= p; )
FINDINGS OF FACT, CONCLUSIONS OF LAW and FINAL ORDER
<=
/span>This
matter is before the Court pursuant to a June 29, 2009 Motion for Summary
Judgment filed by Complainant, Indiana Department of Environmental Manageme=
nt
(“IDEM”), as to whether any genuine issues of material fact exi=
st
as to IDEM’s determination that Jimmerson Bay Developers, LLC is liab=
le
for civil penalties for unpermitted land disturbing activities and insuffic=
ient
erosion and sediment control measures.&nbs=
p;
Although provided in a June 15, 2009 scheduling order, the parties f=
iled
no further briefs on their positions on summary judgment, did not request o=
ral
argument, and did not submit proposed findings of fact, conclusions of law =
and
orders. Petitioner Jimmerson =
Bay
Developers, LLC did not attend the September 3, 2009 Final Prehearing
Conference nor the September 17, 18, 2009 Final Hearing. The Chief Environmental Law Judge
(“ELJ”) having considered the petitions, testimony, evidence, a=
nd
pleadings of the parties, now finds that judgment may be made upon the
record. The Chief ELJ, by
substantial evidence, and being duly advised, now makes the following findi=
ngs
of fact and conclusions of law and enters the following Final Order:
FINDINGS OF FACT
=
1.&n=
bsp;
[2010 OEA 36, page 38 begins]
“Site”). The
Site’s multiple residential lots total 23.3 acres. As planned,
=
2.&n=
bsp;
=
3.&n=
bsp;
=
4.&n=
bsp;
For Site Section I, IDEM’s routine and compla=
int
site inspections from July 7, 2004, October 28, 2004, January 4, 2005, May =
18,
2005, May 19, 2005, May 28, 2005, July 6, 2005 and September 18, 2006 were
provided to Jimmerson Bay’s project owner’s contact Phil Meyers
and/or Mr. Leckner. Ex. B. IDEM inspected Section=
II on
May 18, 2005, May 26, 2005, May 28, 2005 and July 6, 2005; the July 6, 2005
inspection report was attached as an exhibit to IDEM’s Motion for Sum=
mary
Judgment and was provided to Mr. Leckner.&=
nbsp;
Ex. C. Initially, the s=
ite
inspections designated areas of concern as “satisfactory”. Ex. B, C. As the inspection
period continued, the areas of concern progressively deteriorated to
“marginal”, then “unsatisfactory”, along with high
potential for off-site sedimentation and documented lack of, or failed, ero=
sion
and sediment control, including a storm outlet, which deposited off-site
sedimentation in a wetland. <=
st1:State
w:st=3D"on">
=
5.&n=
bsp;
In the Section I development area, houses construct=
ed
on-site were built on top of a steep ridge which dropped off directly into a
wetland and lake below. Ex. B, D. The sandy soil
materials were unstable.
=
6.&n=
bsp;
IDEM’s June 8, 2005 Inspection Summary and
Violation Letter, transmitted to
[2010 OEA 36, page 39 begins]
=
7.&n=
bsp;
IDEM issued a Notice of Violation and Proposed Agre=
ed
Order to Jimmerson Bay Creek (“NOV”) on March 21, 2006, citing =
violations
of the National Pollution Discharge Elimination System (“NPDES”)
requirements and of Rule 5. Ex .F, NOV. The NOV stated, and Jimmerson Bay
admitted[2],
that Jimmerson Bay failed to submit a Notice of Intent letter
(“NOI”) for land-disturbing activities in Section 1, failed to
implement and maintain sediment and erosion control measures at the Site,
installed unauthorized storm water outlets into wetlands on Site, discharged
earthen fill materials into waters of the state, and into a wetland, withou=
t a
valid NPDES permit.
=
8.&n=
bsp;
Following a settlement conference, IDEM mailed a
Proposed Agreed Order to
= 9.&n= bsp; The Commissioner’s Order required Jimmerson B= ay to: (1) immediately cease and desist viola= tion of 327 IAC 5-2-5(a), 327 IAC 15-5-6, 327 IAC 15-5-7(b), 327 IAC 5-2-2, 327 = IAC 2-1-6(a), I.C. § 13-18-4-5 and I.C. § 13-30-2-1; (2) submit a NOI= for Section 1 of the Site within thirty (30) days; (3) submit an updated Construction Pla= n and Storm Water Pollution Prevention Plan within thirty (30) days; (4) immediately implement effective er= osion and sediment control measures, a self-monitoring program, and measures desi= gned to protect the wetlands areas from additional dredge and fill material; (5) submit an “Applicat= ion for Authorization to Discharge Dredged or Filled Material to Isolated Wetla= nds and/or Waters of the State”, State Form 51821, within thirty (30) day= s; (6) maintain certain records, document completion of milestones, and submit= an annual report; and (7) pay a civil penalty of forty-three thousand dollars ($43,000.00). Ex. H.
=
10.&=
nbsp;
[2010 OEA 36, page 40 begins]
11.&=
nbsp;
Per this Court’s June 4, 2007 Order, the part=
ies
engaged in mediation, on September 6, 2007. In its Motion for Summary Judgment=
, IDEM
indicated that the parties arrived at an agreement in principal, but did not
execute a written settlement agreement, although IDEM agreed to
12.&=
nbsp;
As part of the litigation of this cause, IDEM filed=
the
Commissioner’s First Set of Discovery Requests, including Requests for
Admission on March 2, 2009 (“Discovery Requests”). Ex. A. On April 3, 2009, Mr. Leckner filed
“Respondent’s Motion for Enlargement of Time Within Which to Re=
tain
Legal Counsel and Respond to Complainant’s Requests. On April 15, 2009, IDEM file=
d a
Motion to Deem Requests for Admission Admitted per Indiana Trial Rule 36(A),
noting that
[2010 OEA 36, page 41 begins]
13.&=
nbsp;
Complainant IDEM’s Motion for Summary Judgment
was filed on June 29, 2009. T=
he
parties did not submit further briefing or Proposed Findings of Fact,
Conclusions of Law and Orders, nor was oral argument requested as provided =
in
Court’s February 9, 2009 scheduling order.[4] No further submissions were made by
either party. As provid=
ed in
the Court’s February 9, 2009 scheduling order, the cause was set for a
Final Prehearing Conference on September 3, 2009, in preparation for the
September 17, 18, 2009 Final Hearing.
Counsel for Complainant IDEM attended the September 3, 2009 Final
Prehearing Conference.
CONCLUSIONS OF LAW
1.&n=
bsp;  =
;
The Indiana Department of Environmental Management
(“IDEM”) is authorized to implement and enforce specified
2.&n= bsp;  = ; This is a Final Order issued pursuant to I.C. § 4-21.4-3-27. Findings of Fact= that may be construed as Conclusions of Law and Conclusions of Law that may be construed as Findings of Fact are so deemed.
3.&n=
bsp;  =
;
This Court must apply a de novo standard of
review to this proceeding when determining the facts at issue.
[2010 OEA 3=
6, page 42
begins]
4.&n=
bsp;  =
;
The OEA may enter judgment for a party if it finds =
that
“the pleadings, depositions, answers to interrogatories, and admissio=
ns
on file, together with the affidavits and testimony, if any, show that a
genuine issue as to any material fact does not exist and that the moving pa=
rty
is entitled to judgment as a matter of law.” I.C. &=
sect; 4-21.5-3-23. The moving party bears the burden =
of
establishing that summary judgment is appropriate. 585 N.E.2d 700, 703 - 704 (Ind. Ct. App. 1992). Further,
the Indiana Tax Court in Allied
Collection Service Inc. v. Ind. Dept. of State Revenue (Cause No.
49T10-0608-TA-76, December 22, 2008) stated, “If there is any
doubt when ruling on a motion (or motions) for summary judgment as to what
conclusion the Court could reach, the Court will conclude that summary judg=
ment
is improper, given that it is neither a substitute for trial nor a means for
resolving factual disputes or conflicting inferences following from undispu=
ted
facts. See Owens Corning Fiberglass Corp. v. Cobb, 754 N.E.2d 905, 9=
09 (
5.&n= bsp;  = ; In this enforcement case, IDEM has the burden of sh= owing whether the IDEM’s determination that Jimmerson Bay is liable for civ= il penalties for unpermitted land disturbing activities and insufficient erosi= on and sediment control measures either complied with, or was contrary to law,= as a matter of law. In the ma= tter of Objection to the Issuance of Permit Approval No. IN 0061042 Aquasource Services and Technology, 2002 OEA 41 (“Aquasource”).=
[2010 OEA 3=
6, page 43
begins]
6.&n=
bsp;  =
;
OEA is required to base its factual findings on
substantial evidence. Huffman v. Office of Envtl. Adjud., 811 N.E.2d
806, 809 (Ind. 2004)(appeal of OEA review of NPDES permit); see also
I.C. § 4-21.5-3-27(d). While the parties disputed whether
IDEM’s determination of
7.&n= bsp;  = ; Respondent’s election to proceed without legal counsel after February 5, 2009 may not affect this Court’s review of Respondent’s case. R= 20;A litigant who chooses to proceed pro se will be held to the same rule= s of procedure as trained legal counsel and must be prepared to accept the consequences of his action.” Shepherd v. Truex, 819 N.E.= 2d 457, 463 (Ind. Ct. App. 2004), cite= d in Clay Township of Hamilton County, Indiana, by Judith F. Hagan, Clay Township Trustee, Petitioner; The Board of Trustees of the Clay Township Regional Wa= ste District, Respondent; Board of Commissioners of Boone County and Town of Zionsville, Interveners; Indiana Department of Environmental Management, Respondent. (06-W-J-3660), 2007 OEA 8, 13.
8.&n=
bsp;  =
;
9.&n= bsp;  = ; Per Ind. Tr. R 36, IDEM’s Requests for Admiss= ion included in its Discovery Requests to Respondent were deemed admitted.
[2010 OEA 36, page 44 begins]
10.&=
nbsp;
Per 327 IAC 5-2-2, discharge of pollutants into wat=
ers
of the state is prohibited, unless authorized as an exempted activity state=
d in
327 IAC 5-2-4, or unless authorized by a valid National Pollution Discharge
Elimination System (“NPDES”) permit, issued prior to the
discharge. 327 IAC 5-2-4 furt=
her
states general NPDES permit rules for storm water from construction activit=
y.
Substantial evidence shows that
11.&= nbsp; Discharge of pollutants into waters of the state resulting from specified land disturbing activities, including storm water run-off associated with construction activity of one (1) acre or more, is regulated under 327 IAC 15-5, frequently referred to as “Rule 5”. A NPDES permit auth= orizes discharge from specified land disturbing activities. Depending upon the type and scope = of land disturbing activity, a project may qualify for a general permit, or “permit by rule”; more extensive projects may require an indivi= dual permit. 327 IAC 15-1-1. Compliance with a general permit satisfies relevant federal and state law requirements. 327 IAC 15-2-7(a).
12.&= nbsp; Substantial evidence shows no genuine issue of mate= rial fact exists, as a matter of law, that Respondent initiated land disturbing activities at the Site in excess of one acre and has failed to comply with = the requirements stated in 327 IAC 15.
13.&=
nbsp;
Substantial evidence shows no genuine issue of mate=
rial
fact that, as a matter of law, per 327 IAC 5-2-2, Respondent
14.&= nbsp; Per 327 IAC 15-5-4(9), “‘Developer̵= 7; means:
(A)&= nbsp; any person financially respon= sible for construction activity; or
(B)&= nbsp; an owner of property who sell= s or leases, or offers for sale or lease, any lots in a subdivision.”
15.&= nbsp; Per 327 IAC 15-5-4(29), “‘Project site’ means the entire area on which construction activity is to be performed.”
16. = Per 327 IAC 15-5-4(30), “‘Project site owner’ means the person required to submit the NOI letter under this article and required to comply with the terms of this rule, including eithe= r of the following:
(A)&= nbsp; A developer.
[2010 OEA 36, page 45 begins]
(B)&= nbsp; A person who has financial and operational control = of construction activities and project plans and specifications, including the= ability to make modifications to those plans and specifications.”
17. = Per 327 IAC 15-5-2(d), “The project site owner has = the following responsibilities:
(1) Complete a sufficient notice of intent (“NOI”) letter.
(2) Ensure that a sufficient construction plan is completed and submitted in accordance with section 6 of this rule.
(3) Ensure compliance with this rule during:
(A)&= nbsp; the construction activity; and
(B)&= nbsp; Implementation of the construction plan.
(4) Notify [IDEM] with a sufficient notice of termination letter.
(5) Ensure that all persons engaging in construction activity on a permitted project s= ite comply with applicable requirements of this rule and the approved construct= ion plan.”
18.&=
nbsp;
Substantial evidence shows no genuine issue of mate=
rial
fact exists, as a matter of law, that Respondent Jimmerson Bay owned and
operated the Site when the activity described in Commissioner’s Order
occurred, when the Commissioner’s Order was issued and received in
December, 2006, and remains the current project Site owner and operator.
19.&=
nbsp;
Per 327 IAC 15-2-5 and 327 IAC 15-5-6, any person
subject to Rule 5 must submit a NOI letter to IDEM prior to commencing
land-disturbing activities; the NOI must comply with 327 IAC 15-3 and 327 I=
AC
15-5-5. 327 IAC 15-2-5. By substantial evidence, no genuine
issue of material fact exists, as a matter of law, that
[2010 OEA 36, page 46 begins]
20.&=
nbsp;
327 IAC 15-5-7 requires several erosion control
measures to be met on all sites during the period when land-disturbing
activities occur. The require=
ments
include: detaining sediment-laden water from reaching streams, keeping sedi=
ment
off roadways, protecting storm
drains from sedimentation, protecting existing storm water drainage channels
from the land-disturbing activities, and controlling soil run-off through
appropriate erosion control measures.
327 IAC 15-5-7(b). IDEM presented substantial evi=
dence
of the lack of genuine issue of material fact, as a matter of law that
21.&= nbsp; Per 327 IAC 15-5-8, a project site owner remains responsible for the project site until all land disturbing activities, including construction, are complete and the site has achieved “final stabilization”.
22.&= nbsp; Per 327 IAC 15-5-4(14), “‘Final Stabilization’ means the establishment of permanent vegetative cover = or the application of a permanent nonerosive material to areas where all land disturbing activities have been completed and no additional land disturbing activities are planned under the current permit.”
[2010 OEA 36, page 47 begins]
23.&= nbsp; Responsibility for compliance with Rule 5 is not transferred from the project site manager to the individual property owner = or occupier until IDEM issues a verified Notice of Termination (“NOTR= 21;) letter. 327 IAC 15-5-8(e). Un= til IDEM issues a verified NOT letter, the project site owner remains responsib= le for ensuring that the individual lot owners or contractors comply with the approved construction plan so as to satisfy storm water runoff requirements stated in 327 IAC 15-5-7(b). No verified NOT letter was approved or issued = for Respondent’s Site. By substantial evidence, no genuine issue of material fact exists, as a matter= of law, that Respondent remains responsible for compliance with Rule 5 at the Site.
24.&= nbsp; Minimum surface water quality conditions must be maintained, per 327 IAC 2-1-6(a):
(1) All surface waters at all times and at all places, including waters within the mixing zone, shall meet the minimum conditions of being free from substance= s, materials, floating debris, oil or scum attributable to municipal, industri= al, agricultural, and other land use practices, or other discharges that do any= of the following:
(A) &= nbsp; Will settle to form putrescent or otherwise objectionable deposits.
(B) &= nbsp; Are in amounts sufficient to be unsightly or deleterious.
(C) &= nbsp; Produce:
(i)&= nbsp; color;
(ii)= visible oil sheen;
(iii) odor; or
(iv)= other conditions;
&= nbsp; &nbs= p; in such degree as to create a nuisance.
(D) &= nbsp; in concentrations or combinations that will cause or contribute to growth of aquatic plants or algae to such degree as to:
(i) = create a nuisance;
(ii) = be unsightly; or
(iii) = otherwise impair the designated uses.
(E) &= nbsp; Are in amounts sufficient to be acutely toxic to, or otherwise severely injure or kill, aquatic life, or other animals, plants, = or humans . . .
25.&=
nbsp;
As noted in
[2010 OEA 3=
6, page 48
begins]
26. = I.C. § 13-30-2-1(1) provides, in pertinent par= t:
No person may discharge, emit, cause, allow, or threaten to discharge, emit, cause, or al= low any contaminant or waste . . . either alone or in combination with contamin= ants from other sources, into the environment . . . in any form which causes or would cause pollution which violates or which would violate rules, standard= s, or discharge or emission requirements adopted by the appropriate board under the environmental management laws.
27.&=
nbsp;
28. =
It is unlaw= ful for any person to throw, run, drain, or otherwise dispose into any of the streams or waters of Indiana; or cause, permit, or suffer to be thrown, run, drained, allowed to seep, or otherwise disposed into any waters; any organi= c or inorganic matter that causes or contributes to a polluted condition of any waters . . . as determined by rules adopted by the Water Pollution Control Board.
Due to construction activity
documented in July 7, 2004, October 28, 2004, January 4, 2005, May 18, 2005,
May 19, 2005, May 28, 2005, July 6, 2005 and September 18, 2006 (Section I);
and in May 18, 2005, May 26, 2005, May 28, 2005 and July 6, 2005 and Septem=
ber
18, 2006 (Section II), IDEM Exs. B,=
C, D.,
Jimmerson Bay caused and/or allowed sediment to enter waterways which
contributed to polluted conditions in violation of I.C. § 13-18-4-5. As a matter of law, substantial ev=
idence
has been presented that no genuine issue of material fact exists, that
29. =
As a matter of law,
[2010 OEA 3=
6, page 49
begins]
30. =
The
Commissioner’s Order was issued to
31.&=
nbsp;
At the September 3, 2009 Final Prehearing Conferenc=
e,
the only attending party, IDEM, elected to present no further evidence to
supplement the evidence offered to support its motion for summary
judgment. Although
[2010 OEA 36, page 50 begins]
32.&= nbsp; The policy states that the potential for harm may be determined by considering “the likelihood and degree of exposure of person or the environment to pollution” or “the degree of adver= se effect of noncompliance on statutory or regulatory purposes or procedures f= or implementing the program.” There are several factors that may be considered in determining the likelihood of exposure. These= are the toxicity and amount of the pollutant, the sensitivity of the human population or environment exposed to the pollutant, the amount of time expo= sure occurs, and the size of the violator.
33.&= nbsp; For the violations of I.C. § 13-30-2-1(1), I.C. § 13-18-4-5 and 327 IAC 15-5-6, failure to submit an NOI, the potential for harm is minor. The lack of proper notice, in and of itself, creates no likelihood of exposure to harmf= ul substances, but noncompliance with the requirement eliminates IDEM’s opportunity to advise against harm or prepare for response.
34.&= nbsp; The second determination for the violations of I.C. § 13-30-2-1(1), I.C. § 13-18-4-5 and 327 IAC 15-5-6 is the extent= of deviation. Failure to submit = an NOI in this instance results in a minor extent of deviation.
35.&= nbsp; According to the Civil Penalty Policy, a value is selected from a selected cell “is left to the judgment of enforcement staff and is based on the individual circumstances of each case.” On de novo review of a case before the OEA, such judgment is to be exercised = by the presiding environmental law judge (“ELJ”), to determine the base penalty. In this case, t= he ELJ finds that the lowest end of the range for a Minor/Minor violation is appropriate, resulting in a penalty of One Thousand Dollars ($1,000.00) per violation day. The violation = of failing to submit an NOI occurred once, therefore one violation day is selected, for a base civil penalty of One Thousand Dollars ($1,000.00). The base civil penalty value may be adjusted by aggravating or mitigating factors. The mitigating factor of “Qu= ick Settlement” did not occur, as Respondent did not execute a settlement which it agreed to in mediation. Therefore, the ELJ finds either aggravating or mitigating factors to consider. No evidence quantif= ied an economic benefit inuring to Respondent.&nb= sp;
36.&=
nbsp;
[2010 OEA 36, page 51 begins]
37.&=
nbsp;
For the violations of I.C. § 13-30-2-1(1), I.C.
§ 13-18-4-5 and 327 IAC 15-5-7, failure to implement and maintain eros=
ion
control measures, the potential for harm is moderate. Failed erosion control measures re=
sulted
in release of storm water containing residential construction site runoff,
presumed to be soil and debris customarily used in home construction. No evidence was presented that the
deposited materials were toxic. The
inspection reports and photographs demonstrate that a large amount of
unpermitted discharge was deposited over a long period of time. A public road was affected. Erosion occurred to the environmen=
t, and
runoff left deposits in a sensitive environment, a wetlands, and a lake.
38.&= nbsp; The second determination for the violations of I.C. § 13-30-2-1(1), I.C. § 13-18-4-5 and 327 IAC 15-5-7 is the extent= of deviation. Failure to impleme= nt and maintain erosion control measures in this instance results in a moderate ex= tent of deviation.
39.&= nbsp; According to the Civil Penalty Policy, a value is selected from a selected cell “is left to the judgment of enforcement staff and is based on the individual circumstances of each case.” On de novo review of a case before the OEA, such judgment is to be exercised = by the presiding environmental law judge (“ELJ”), to determine the base penalty. In this case, t= he ELJ finds that the lowest end of the range for a Moderate/Moderate violation is appropriate, resulting in a penalty of Seven Thousand Five Hundred Dollars ($7,500.00) per violation day. The violation of failing to implement and maintain erosion control measures occurred on two sites, Sections I and II, therefore two violation days are selected, for a base civil penalty of Fifteen Thousand Dollars ($15,000.00). The base civil penalty value may be adjusted by aggravating or mitigating factors. The mitigating factor of “Qu= ick Settlement” did not occur, as Respondent did not execute a settlement= it agreed to in mediation. There= fore, the ELJ finds neither aggravating or mitigating factors to consider. No evidence quantified an economic= benefit inuring to Respondent.
40. =
41. = For the violations of I.C. § 13-30-2-1(1), I.C. § 13-18-4-5 and 327 IAC 5-5-2, discharging without a permit, the poten= tial for harm is moderate. The vio= lation of failing to obtain a permit occurred once, therefore one violation day is selected. However, the regula= tory purposes or procedures for implementing the program were disregarded, and resulted in extensive investigatory and litigation burden to the taxpayers = via IDEM.
42. = The second determination for the violations of I.C. § 13-30-2-1(1), I.C. § 13-18-4-5 and 327 IAC 5-5-2 is the extent = of deviation. Failing to obtain a permit for dis= charge in this instance results in a minor extent of deviation.
[2010 OEA 36, page 52 begins]
43. = According to the Civil Penalty Policy, a value is selected from a selected cell “is left to the judgment of enforcement staff and is based on the individual circumstances of each case.” On de novo review of a case before the OEA, such judgment is to be exercised = by the presiding environmental law judge (“ELJ”), to determine the base penalty. In this case, t= he ELJ finds that the midrange for a Moderate/Minor violation is appropriate, resulting in a penalty of Two Thousand Dollars ($2,000.00) per violation day. The violation of dischar= ging without a permit, as in the case of failure to submit an NOI, occurred once= , therefore one violation day is selected, for a base civil penalty of Two Thousand Dol= lars ($2,000.00). The base civil p= enalty value may be adjusted by aggravating or mitigating factors. The mitigating factor of “Qu= ick Settlement” did not occur, as Respondent did not execute a settlement= it agreed to in mediation. There= fore, the ELJ finds neither aggravating or mitigating factors to consider. No evidence quantified an economic benefit inuring to Respondent.
44. =
45. =
For the violations of I.C. § 13-30-2-1(1), I.C.
§ 13-18-4-5 and 327 IAC 2-1-6, releasing unpermitted discharge into the
waters of the State, the potential for harm is major. The unpermitted discharge resulted=
in
release of storm water containing residential construction site runoff,
presumed to be soil and debris customarily used in home construction. No evidence was presented that the
deposited materials were toxic. The
inspection reports and photographs demonstrate that a large amount of
unpermitted discharge was deposited over a long period of time. A public road was affected. Erosion occurred to the environmen=
t, and
runoff left deposits in a sensitive environment, a wetlands, and a lake.
46.&= nbsp; The second determination for the violations of I.C. § 13-30-2-1(1), I.C. § 13-18-4-5 and 327 IAC 2-1-6 is the extent = of deviation. Release of unpermi= tted discharge into the waters of the State in this instance results in a major extent of deviation.
[2010 OEA 36, page 53 begins]
47.&= nbsp; According to the Civil Penalty Policy, a value is selected from a selected cell “is left to the judgment of enforcement staff and is based on the individual circumstances of each case.” On de novo review of a case before the OEA, such judgment is to be exercised = by the presiding environmental law judge (“ELJ”), to determine the base penalty. In this case, t= he ELJ finds that the low end of the range for a Major/Major violation is appropri= ate, resulting in a penalty of Twenty Thousand Dollars ($20,000.00) per violation day. The violation of dischar= ging into waters of the State was documented as unsatisfactory, or photographs showed off–site discharge, in May, 2005, July 2005, and September, 2006. Three violation days are selected, for a base civil penalty of Sixty Thousand Dollars ($60,000.00).<= span style=3D'mso-spacerun:yes'> The base civil penalty value may be adjusted by aggravating or mitigating factors. The mitigating factor of “Qu= ick Settlement” did not occur, as Respondent did not execute a settlement= it agreed to in mediation. There= fore, the ELJ finds neither aggravating or mitigating factors to consider. No evidence quantified an economic benefit inuring to Respondent.
48.&=
nbsp;
49.&=
nbsp;
FINAL ORDER
<= /span>For all of the foregoing reasons, IT IS THEREFORE ORDERED, ADJUDGED AND DECR= EED that the Respondent, Jimmerson Bay Developers, LLC, violated I.C. § 13-30-2-1(1), I.C. § 13-18-4-5, 327 IAC 15-5-6, 327 IAC 15-5-7, 327 IAC 5-2-2 and 327 IAC 2-1-6.
1.&n= bsp; Complainant, Indiana Department of Environmental Management’s Motion for Summary Judgment is GRANTED, on the is= sues that Jimmerson Bay Developers, LLC that Jimmerson Bay is subject to civil penalties for violating Indiana’s environmental management laws and w= ater pollution control laws.
2.&n= bsp; Complainant, Indiana Department of Environmental Management’s Motion for Summary Judgment is DENIED, on the iss= ue that the civil penalty assessed by the Indiana Department of Environmental = Management is correct, as a matter of law.
3.&n= bsp; Respondent, Jimmerson Bay Developers, LLC, is subje= ct to civil penalties of Seventy-Eight Thousand Dollars ($78,000) for violating Indiana’s environmental management laws and water pollution control laws.
[2010 OEA 36, page 54 begins]
4.&n= bsp; Except for the amount of civil penalty, the Indiana Department of Environmental Management’s December 19, 2006 Commissioner’s Order is AFFI= RMED.
<= /span>You are further notified that pursuant to provisions of I.C. § 4-21.5-7-5, the Office of Environmental Adjudication serves as the ultimate authority in administrative review of decisions of the Commissioner of the Indiana Department of Environmental Management. A party is eligib= le to seek Judicial Review of this Final Order as stated in applicable provisions= of I.C. § 4-21.5, et seq. Pursuant to I.C. § 4-21.5-5-5= , a Petition for Judicial Review of this Final Order is timely only if it is fi= led with a civil court of competent jurisdiction within thirty (30) days after = the date this notice is served.
You are further notified that pursuant to provisions of I.C. § 4-21.5-7-5, the Office of Environmental Adjudication serves as the ultimate authority in administrative review of decisions of the Commissioner of the Indiana Department of Environmental Management. A party is eligib= le to seek Judicial Review of this Final Order as stated in applicable provisions= of I.C. § 4-21.5, et seq. Pursuant to I.C. § 4-21.5-5-5= , a Petition for Judicial Review of this Final Order is timely only if it is fi= led with a civil court of competent jurisdiction within thirty (30) days after = the date this notice is served.
<=
/span>IT
IS SO ORDERED in
&= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; &nbs= p; Hon. Mary L. Davidsen
Chief Environmental Law Judge
[2010 OEA 36: end of decision]
2010
OEA 36 in .doc format
2010
OEA 36 in pdf.format
[1] Unless otherwise referenced, citations to exhibits refer to exhibits attach= ed to IDEM’s June 29, 2009 Motion for Summary Judgment.
[2] See Paragraph 12, below, for specif= ic findings that by failing to respond to IDEM’s March 2, 2009 Requests = for Admission in a timely manner, the Admissions were deemed admitted, per Ind.= Tr. R. 36(A) as ordered by the Court on June 15, 2009.
[3] The = 2006 and 2007 versions of the IAC apply to the facts of this cause; both versions are identical.
[4] As a courtesy to the parties, the February 9, 2009 scheduling order was repeat= ed in the Court’s June 15, 2009 Order.
[5] 2008 OEA 40; see also January 26, 2009 Order, Cause No. 47D01-0805-PL-717 (Lawrence Superior Court 1), attached hereto and incorporated herein.
[6] IDEM’s Civil Penalty Policy is a non-rule document, ID No. Enforcement 99-0002-NPD, originally adopted on April 5, 1999 in accordance with Ind. Code § 13-14-1-11.5.
[7] The violations were actually observed on nine different days. According to the Civil Penalty Pol= icy Nonrule Policy Document, IDEM correlates the number of days the violations = were observed to a corresponding “violation days” multiplier for the purposes of calculating a civil penalty.&n= bsp; The resulting multiplier is typically less than the number of times = the violations were actually observed.
Comm=
issioner,
Indiana Department of Environmental Management, v.
2010=
OEA
36, (06-W-E-3854)