STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT
) SS: OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION )
COMMISSIONER OF THE DEPARTMENT )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
)
vs. ) Case No. 2001-10509(b)-W
)
RALPH W. SWANK, JR. d/b/a STATEWIDE )
INSURANCE COMPANY, and/or )
STATEWIDE INSURANCE COMPANY, )
)
Respondents. )
AGREED ORDER
The Complainant and the Respondents 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 any violation contained herein. The Respondents’
entry into this Agreed Order shall not constitute a waiver of any defense, legal or equitable,
which Respondents 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 (AComplainant@) of the Indiana Department of Environmental Management (IDEM), a department of the State of Indiana created by IC 13-13-1-1.
2. Respondents are Ralph W. Swank, Jr., and Statewide Insurance Company ("Respondents"). Statewide is an Illinois corporation and was authorized by the State of Indiana Office of the Insurance Commissioner to transact insurance business in Indiana pursuant to a Certificate of Authority issued on July 2, 1993. Ralph W. Swank, Jr. served as President of Statewide Insurance Company.
3. The Delaware County Regional Wastewater District was issued a construction permit, approval number L-0062R (the "construction permit") for the construction of a sanitary sewer system (the "project") in the Royerton Area, located in Hamilton Township of Delaware County, Indiana (the "site"). Chaffee and Associates, Inc. served as the consulting engineer for the project; Midwest Contractors of Michigan, Inc. served as the original general contractor for the project; and the Respondents served as the surety for Midwest Contractors of Michigan, Inc., and became the general contractor for the project subsequent to the Delaware County Regional Wastewater District terminating its construction contracts with Midwest Contractors of Michigan, Inc. effective on or about March 7, 2001.
4. The Indiana Department of Environmental Management (AIDEM@) has jurisdiction over the parties and the subject matter of this action.
5. Pursuant to IC 13-30-3-3, on October 22, 2001, IDEM issued a Notice of Violation via Certified Mail to:
Joe Evans, Chairman Kevin R. Chaffee, President and
Board of Trustees Registered Agent
Delaware County Regional Chaffee and Associates, Inc.
Wastewater District 204 South St.
100 West Main Street Batesville, Indiana 47006
Muncie, Indiana 47035
Todd LaCosse, President C.T. Corporation, Registered Agent
Midwest Contractors of Michigan, Inc. Midwest Contractors of Michigan, Inc.
4299 Aztec Way 36 S. Pennsylvania Street
Okemos, Michigan 48864 Suite 700
Indianapolis, Indiana 46204
and on January 16, 2003, IDEM issued a Notice of Violation via Certified Mail to:
Ralph W. Swank, Jr., d/b/a Ralph W. Swank, Jr., President
Statewide Insurance Company Statewide Insurance Company
P.O. Box 799 60079 0799 P.O. Box 799 60079 0799
329 North Genesee St. 329 North Genesee St.
Waukegan, Illinois 60085-4205 Waukegan, Illinois 60085-4205
Locke Reynolds, LLP, Registered Agent
Statewide Insurance Company
201 North Illinois St.
Suite 1000
Indianapolis, Indiana 46244
6. This Agreed Order resolves the violations set forth in the October 22, 2001 Notice of Violation, solely with respect to Respondents Ralph W. Swank Jr. (individually and/or d/b/a Statewide Insurance Company) and Statewide Insurance Company in their capacity as surety for Midwest Contractors of Michigan, Inc. In addition, this Agreed Order resolves the violations set forth in the January 16, 2003 Notice of Violation with respect to Respondents Ralph W. Swank Jr. (individually and/or d/b/a Statewide Insurance Company) and Statewide Insurance Company in their capacity as general contractor for the project as well as in their capacity as surety for Midwest Contractors of Michigan, Inc. This Agreed Order does not resolve the violations set forth in the October 22, 2001 Notice of Violation with respect to Midwest Contractors of Michigan, Inc., Chaffee and Associates, Inc., or the Delaware County Regional Wastewater District.
7. An investigation by IDEM of the project revealed the following violations:
Pursuant to IC 13-30-2-1(2), no person shall construct or install a sewer or new outlet for contaminants into the waters of Indiana without prior approval of IDEM.
Pursuant to IC 13-30-2-1(7), no person shall construct, operate, conduct, or modify, without prior approval of IDEM, any equipment of facility of any type that may cause or contribute to pollution or be designed to prevent pollution.
Pursuant to 327 IAC 3-2-1, no person shall cause or allow the construction, installation, or modification of any water pollution treatment/control facility or sanitary sewer, without a valid construction permit issued by the commissioner.
Pursuant to the construction permit, the Delaware County Regional Wastewater District is authorized to construct the water pollution treatment/control facilities and/or sanitary sewers described therein, in the with the terms and conditions set forth in the construction permit, the accompanying approved plans and specifications, and 327 IAC 3.
Pursuant to Part II.1 of the construction permit, no significant or material changes in the scope of the plans or construction of the project shall be made unless the following provisions are met:
a. A request for permit modifications is made 60 days in advance of the proposed significant or material changes in the scope of the plans or construction;
b. A detailed statement of such proposed changes is submitted;
c. Revised plans and specifications, including a revised design summary, are submitted for IDEM approval;
d. A revised construction permit is obtained from IDEM.
IDEM records indicate that Ralph W. Swank, Jr. was President and/or d/b/a Statewide Insurance Company, and that Statewide Insurance Company, became the general contractor for the project subsequent to the Delaware County Regional Wastewater District terminating its construction contracts with Midwest Contractors of Michigan, Inc. effective on or about March 7, 2001.
The IDEM investigation of the project included: site visits on April 3, May 23, and May 24, 2001; a review of the "Manhole Inspection File & Photo Log" submitted by the Delaware County Regional Wastewater District to IDEM in May 2001; and a review of the "as-built" plans and the "Post-Construction Inspection Report" prepared by Commonwealth Engineers, Inc., and submitted to IDEM on August 1, 2001.
The IDEM investigation revealed failures to construct in accordance with the approved plans and specifications and provisions of 327 IAC 3, in violation of the construction permit and 327 IAC 3. The failures include, but are not necessarily limited to the following:
A failure to comply with Part 1.11, Section 01500 of the approved specifications, which states that excavations will be maintained free of water, and pumping equipment will be provided, operated, and maintained to maintain stability against uplift during construction.
A failure to comply with 327 IAC 3-6-20, which states that all water entering a sanitary sewer project excavation, prior to construction completion, shall be removed.
A failure to comply with Part 2.01 and Part 2.02, Section 02640 of the approved specifications and 327 IAC 3-6-16, which contain technical standards for the manhole sections, the lid and frame, the connections, and the grade rings.
A failure to comply with Part 3.04 (C), Section 02535 of the approved specifications and 327 IAC 3-6-5(b), which require, in part, that all drinking water wells be located prior to sewer main installation.
A failure to comply with Part 3.04(C), Section 02535 of the approved specifications, which requires that a minimum 10 feet (50 feet if practical) separation distance be maintained between private wells and pressure sewer mains and pressure sewer laterals, and further requires that a minimum separation of 50 feet be maintained between private wells and gravity sewer mains unless pressure sewer grade pipe is used and pressure tested in accordance with this section.
A failure to comply with Part 2.01 and Part 3.03 of Section 02316, and Part 2.01 of Section 02240 of the approved specifications, Page D, 1 of the approved plan sheets, and 327 IAC 3-6-18, which contain the specifications for sewer pipe initial backfill and subsoil backfill.
A failure to comply with 327 IAC 3-6-12, which contains the slope requirements for gravity sewers.
In addition, the investigation by IDEM indicated that significant and material changes in the scope of the plans or construction of the project occurred, and that such changes continued to occur after March 7, 2001, and were made without submittal of a request for permit modification, without submittal of a detailed statement of such proposed changes, without submittal of revised plans and specifications, and without obtaining a revised construction permit from IDEM, in violation of Part II.1 of the construction permit, 327 IAC 3-2-1, IC 13-30-2-1(2), and IC 13-30-2-1(7).
8. On December 17, 2001, the Delaware County Regional Wastewater District submitted revised plans and specifications to IDEM for review, with additional information submitted on December 26, 2001, January 31, 2002, February 5, 2002, and February 8, 2002.
9. On February 22, 2002, IDEM issued a revised construction permit (Approval No. L-0062RR) ("the revised construction permit") to the Delaware County Regional Wastewater District, which applies to the construction of the proposed sanitary sewer system to be located at the site. The Delaware County Regional Wastewater District has initiated construction pursuant to the revised construction permit.
10. In recognition of the settlement reached, the Respondents waive 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 Respondents. This Agreed Order shall have no force or effect until the Effective Date.
2. Respondents shall comply with IC 13-30-2-1(2), IC 13-30-2-1(7) and 327 IAC 3-2-1.
3. Respondents are assessed a civil penalty of Thirty Five Thousand Dollars ($35,000). Said penalty amount shall be due and payable to the Environmental Management Special Fund within 30 days of the Effective Date of this Agreed Order.
4. The civil penalty is payable by check to the Environmental Management Special Fund. The check shall include the Case Number of this action and shall be mailed to:
Cashier
IDEM
100 N. Senate Avenue
P. O. Box 7060
Indianapolis, IN 46207-7060
5. This Agreed Order shall apply to and be binding upon the Respondents, their successors and assigns. Respondents 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 Respondents 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. This Agreed Order shall remain in effect until the Respondents have complied with all terms and conditions of paragraph 3 of this Agreed Order and a close out letter has been issued by IDEM.
TECHNICAL RECOMMENDATION: RESPONDENT:
Department of Environmental Management Ralph W. Swank, Jr.
By: _________________________ By: _________________________
Mark W. Stanifer Printed: ______________________
Chief, Water Enforcement Section
Office of Enforcement Title: ________________________
Date: ________________________ Date: ________________________
RESPONDENT:
Statewide Insurance Company
Printed: ______________________
Title: ________________________
Date: ________________________
COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENTS:
Department of Environmental Management
By: _________________________ By: ________________________
Hala K. Silvey
Office of Legal Counsel
Department of Environmental Management
Date: _______________________ Date: ______________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _____ DAY OF ____________________, 200__.
For the Commissioner:
___Signed 11/13/03_______
Felicia A. Robinson
Deputy Commissioner
for Legal Affairs