STATE OF INDIANA

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BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

)

SS:

 

COUNTY OF MARION

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COMMISSIONER OF THE DEPARTMENT

)

OF ENVIRONMENTAL MANAGEMENT,

)

 

)

 

Complainant,

)

 

)

 

v.

)

CASE NOS. 2000-9906-W and

 

)

2000-10608-W

FORTUNE MANAGEMENT, INC., and

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TWENTY-FIRST CENTURY, L.L.C.,

)

 

)

 

Respondents.

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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.

I. FINDINGS OF FACT

1. The 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. The Respondents are Fortune Management, Inc., and Twenty-First Century, L.L.C., ("Respondents"). Fortune Management, Inc., owns and operates a commercial property development management company, having its main business office located at 110 North Washington Street, Suite 100, in Kokomo, Indiana. Twenty-First Century, L.L.C., is a limited liability corporation, having its main business office located at 110 North Washington Street, Suite 300, in Kokomo, Indiana. Twenty-First Century, L.L.C, owns and is developing a residential subdivision known as Chrystal Woods, located at 700 South Dixon Road, in Kokomo, Howard County, Indiana ("Site"). Fortune Management, Inc, is managing the Chrystal Woods project for Twenty-First Century, L.L.C.

 

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

4. Pursuant to IC 13-30-3-3, on January 23, 2001, IDEM issued a Notice of Violation via Certified Mail to:

Mr. Scott A. Pitcher, President and Registered Agent
Fortune Management, Inc.
110 North Washington Street, Suite 300
Kokomo, Indiana 46901

 

 

5. Pursuant to IC 13-30-3-3, on July 26, 2001, IDEM issued an amended Notice of Violation via Certified Mail to:

Mr. Scott A. Pitcher, President and Registered Agent
Fortune Management, Inc.
110 North Washington Street, Suite 300
Kokomo, Indiana 46901

 

 

 

and

 

 

 

Mr. Thomas L. Harrold, Registered Agent
Twenty-First Century, L.L.C.
110 North Washington Street, Suite 300
Kokomo, Indiana 46901

 

 


6. Inspections and records reviews were conducted at the Site by a representative of the Howard County Soil and Water Conservation District (SWCD). The following violations were in existence or observed at the time of these inspections and record reviews:

A. Pursuant to 327 IAC 15-5-6, all information required under 327 IAC 15-3 and 327 IAC 15-5-5, specifically a Notice of Intent (NOI) letter and all related information, shall be submitted to the commissioner prior to the initiation of land disturbing activities. The Respondents failed to submit an NOI letter prior to initiating land disturbing activities at Chrystal Woods Subdivision, on or before November 23, 1999, in violation of 327 IAC 15-5-6.

B. Pursuant to 327 IAC 15-5-7(a), the operator shall develop an erosion control plan, in accordance with the requirements under this section. The Respondents failed to develop an Erosion Control Plan (ECP) for Chrystal Woods Subdivision prior to initiating land disturbing activities on or before November 23, 1999, in violation of 327 IAC 15-5-7.

 

C. Pursuant to 327 IAC 15-5-7(b), certain requirements for erosion control measures shall be met on the site during the period when land disturbing activities occur. These requirements include, but are not limited to, the following:

1. Sediment tracked from the site onto public or private roadways shall be minimized.

2. Public and private roadways shall be kept clear of accumulated sediment.

3. All on-site storm drains shall be protected against sedimentation by appropriate and acceptable methods.

4. Run-off from a disturbed area shall be controlled by either appropriate vegetative practices, the implementation of an erosion control plan that includes appropriate erosion control measures, or both.

The Respondents failed to implement and maintain appropriate erosion control measures at Chrystal Woods Subdivision, as observed on November 23 and December 20, 1999, and March 6, May 8, May 18, June 20, June 26, July 26, September 18, October 5, November 2, and December 5, 2000; and to keep public and private roadways clear of accumulated sediment as observed on June 26, November 2, and December 5, 2000; in violation of 327 IAC 15-5-7(b).

7. On or about September 24, 1999, the Respondents submitted an ECP for the Chrystal Woods subdivision to the Howard County SWCD. This plan was determined to be deficient and further revision was requested.

8. On October 11, 1999, the Respondents submitted a revised ECP to the Howard County SWCD. The revised plan was determined to be deficient and further revision was requested.

9. On November 29, 1999, the Respondents submitted a second revised ECP to the Howard County SWCD.

10. In January 2000, the Howard County SWCD determined that the second revised plan satisfied the minimum requirements of 327 IAC 15-5.

11. On February 7, 2000, the Respondents submitted an NOI letter for the Chrystal Woods subdivision to IDEM. The NOI letter was determined to be deficient.

12. On September 11, 2000, IDEM issued to the Respondents a Notice of Noncompliance regarding the Respondent's continued land disturbing activities at the Site without the submission of an NOI letter that met the requirements of 327 IAC 15-5.

13. On September 13, 2000, the Respondents supplied the missing information necessary for IDEM to complete the review of the NOI letter.

14. On September 14, 2000, IDEM determined that the revised NOI letter met the requirements of 327 IAC 15-5.

 

15. On March 15, 2001, representatives of IDEM, the Indiana Department of Natural Resources (IDNR), and the Howard County SWCD inspected the Chrystal Woods subdivision construction site and noted the following deficiencies:

A. Disturbed areas were not adequately protected through seeding or other appropriate erosion and sediment control practices.

B. Conveyance channels were not properly stabilized or protected with appropriate erosion control practices.

C. Outlets were not adequately stabilized.

D. Erosion and sediment control measures were not installed and maintained on individual building sites.

16. On September 28, 2001, representatives of IDEM and the Howard County SWCD inspected the Chrystal Woods subdivision construction site. During this inspection the drainage patterns on and around the site were studied and clarified.

17. On November 9, 2001, representatives of IDNR and the Howard County SWCD inspected the Chrystal Woods subdivision construction site and noted the following deficiencies:

A. Appropriate perimeter sediment control measures were not implemented.

 

B. Conveyance channels were not properly stabilized or protected with appropriate erosion control practices.

C. Outlets were not adequately stabilized.

D. Erosion and sediment control measures were not installed and maintained on individual building sites.

18. On March 6, 2002, representatives of IDNR and the Howard County SWCD inspected the Chrystal Woods subdivision construction site and noted the following deficiencies:

A. Disturbed areas were not adequately protected through seeding or other appropriate erosion and sediment control measures.

B. Appropriate perimeter sediment control measures were not implemented.

C. Conveyance channels were not properly stabilized or protected with appropriate erosion control practices.

D. Erosion and sediment control measures were not installed and maintained on individual building sites.

19. On March 19, 2002, representatives of IDNR and the Howard County SWCD inspected the Chrystal Woods subdivision construction site and noted the following deficiencies:

 

A. Disturbed areas were not adequately protected through seeding or other appropriate erosion and sediment control measures.

B. Appropriate perimeter sediment control measures were not implemented.

C. Conveyance channels were not properly stabilized or protected with appropriate erosion control practices.

D. Erosion and sediment control measures were not installed and maintained on individual building sites.

20. 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. The Respondents shall comply with all applicable provisions of the Indiana Code ("IC"), Indiana Administrative Code ("IAC"), and any effective permits, including but not limited to 327 IAC 15-5-7.

3. Within 10 days of the Effective Date of this Agreed Order, the Respondents shall complete the following:

A. Properly install silt fencing at the rear of Lots 13, 14, 15, 26 and 27 bordering the retention basin.

B. Temporarily seed, fertilize, and mulch all general lot areas to be left undeveloped and exposed for a period of at least three months.

C. Permanently seed, fertilize and mulch all areas that are at final grade.

D. Install and maintain construction entrances on all lots where active construction activity is occurring.

E. Stabilize the conveyance channel that runs behind Lots 10, 11, 12, 13, and 14 and into the retention basin between the Chrystal Woods subdivision and the Dixon Place subdivision on the north and northwest borders of the Crystal Woods development by temporarily seeding the channel and installing either rock or straw bale check dams.

4. During the period this Agreed Order is in effect, the Respondents shall correct all items identified as deficient or unsatisfactory on any On-Site Evaluation For Erosion and Sediment Control report from either the Howard County SWCD or the Indiana Department of Natural Resources within the time frame indicated on the report. In the event that no time frame is specified, the corrections shall be made within 10 days after the receipt of the report.

5. During the period this Agreed Order is in effect, the Respondents shall inspect the Chrystal Woods subdivision construction site on a twice-per-month basis and no later than the close of the next business day following any day on which a measurable precipitation of at least 0.50 inches occurs to ensure that all erosion and sediment control measures are properly maintained. For the purposes of this Agreed Order, the precipitation amount used to determine the need for a precipitation-based inspection shall be based on the official precipitation amounts reported for Kokomo on the Applied Meteorology Group web site maintained by the Department of Agronomy from Purdue University's School of Agriculture at http://shadow.agry.purdue.edu. For any erosion and sediment control measure found to be deficient during any inspection, the Respondents shall take appropriate corrective action, which may include, but is not limited to, removing accumulated sediment from behind silt fences and at storm inlets, assuring that conveyance channels and swales are stabilized, and installing any additionally necessary erosion control measures. An Inspection Log shall be maintained for documentation and review purposes. Information in the log shall include, but not be limited to, the date and time of inspection, results/observations found during the inspection, and any corrective measures conducted as a result of deficiencies found during the inspection. The log shall be maintained on site so that it is available for review.

6. All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:

Susan Baker, Office of Enforcement
Indiana Department of Environmental Management
100 North Senate Avenue
P.O. Box 6015
Indianapolis, IN 46206-6015

 

7. The Respondents are jointly assessed a civil penalty of Three Thousand, Seven Hundred Fifty ($3,750). 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.

8. In the event the terms and conditions of the following Order paragraphs are violated, the Complainant may assess and the Respondents shall jointly pay a stipulated penalty in the following amount:

 

Violation

Penalty

Failure to comply with Paragraph 3

$500 per each item per each week, or part thereof, past the 10-day deadline that the Respondents fails to correct that particular item.
   

Failure to comply with Paragraph 4

$500 per each week, or part thereof, past the applicable deadline that the Respondents fail to correct all identified deficiencies or unsatisfactory items.
   

Failure to comply with Paragraph 5

$250 per each semi-monthly or post-rain event inspection that the Respondents fail to conduct.

 

9. Stipulated penalties shall be due and payable within thirty (30) days after the Respondents receive written notice that the Complainant has determined a stipulated penalty is due. Assessment and payment of stipulated penalties shall not preclude the Complainant from seeking any additional relief against the Respondents for violation of the Agreed Order. In lieu of any of the stipulated penalties given above, the Complainant may seek any other remedies or sanctions available by virtue of the Respondents' violation of this Agreed Order, or Indiana law, including but not limited to civil penalties pursuant to IC 13-30-4.

10. Civil and stipulated penalties are payable by check to the Environmental Management Special Fund. Checks shall include the Case 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

 

11. In the event that the civil penalty required by Order Paragraph 7, is not paid within thirty (30) days of the Effective Date of this Agreed Order, the Respondents shall jointly 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.

12. This Agreed Order shall apply to and be binding upon the Respondents, their successors, and assigns. The 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.

13. 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.

14. The Respondents shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights are transferred. The Respondents shall ensure that all contractors, firms and other persons performing work under this Agreed Order comply with the terms of this Agreed Order.

15. This Agreed Order is not, and shall not be interpreted to be, a permit, or a modification of an existing permit, nor shall it in any way relieve the Respondent of its obligation to comply with the requirements of any applicable permit or with any other applicable federal or state law or regulation.

16. The Complainant does not, by her approval of this Agreed Order, warrant or aver in any manner that the Respondent's compliance with any aspect of this Agreed Order will result in compliance with the provisions of the Clean Water Act, any permit held by the Respondent, or state law.

17. This Agreed Order shall remain in effect until the Respondents comply with the terms of Order Paragraphs 3 through 11, the Agreed Order has been in effect for a minimum period of eighteen months after the Effective Date of the Agreed Order, and IDEM issues a Resolution of Case letter to the Respondents.

  

TECHNICAL RECOMMENDATION:

RESPONDENT:

Department of Environmental Management

Fortune Management, Inc.

By:

___________________________________

By:

___________________________________
 

Mark W. Stanifer
Section Chief, Water Section
Office of Enforcement

Printed: Title:

___________________________________

___________________________________
       

Date:

___________________________________

Date:

___________________________________
       

COUNSEL FOR COMPLAINANT:

COUNSEL FOR RESPONDENT:

Department of Environmental Management

Fortune Management, Inc.

By:

___________________________________

By:

___________________________________
 

Office of Legal Counsel

    
       

Date:

___________________________________

Date:

___________________________________
       
   

RESPONDENT:
   

Twenty-First Century, L.L.C.
   

By:

___________________________________
   

Printed: Title:

___________________________________

___________________________________
       
   

Date:

___________________________________
       
   

COUNSEL FOR RESPONDENT:
   

Twenty-First Century, L.L.C.
   

By:

___________________________________
       
   

Date:

___________________________________

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS ___________ DAY OF _______________________________, 200___.

For The Commissioner:

 Original signed on July 28, 2002, by

Felicia A. Robinson
Deputy Commissioner for Legal Affairs