STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT

) SS: OF ENVIRONMENTAL MANAGEMENT

COUNTY OF MARION )

COMMISSIONER OF THE DEPARTMENT )

OF ENVIRONMENTAL MANAGEMENT, )

)

Complainant, )

)

v. ) Case No. 2001-10815-W

)

DAVID BRIZENDINE, d/b/a )

DAVID BRIZENDINE, INC., )

SHEPHERD'S GROVE )

DEVELOPMENT GROUP, INC., )

SHEPHERD'S GROVE, SECTION I )

SUBDIVISION, )

)

Respondent. )
 
 

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.
 
 

1. The Complainant is the Commissioner ("Complainant") of the Indiana Department of Environmental Management, a department of the State of Indiana created by IC 13-13-1-1.
2. The Respondent is David Brizendine, d/b/a David Brizendine, Inc., and Shepherd's Grove Development Group, Inc. ("Respondent"), who owns and operates Shepherd's Grove, Section I Subdivision, located on the south side of Smith Valley Road, approximately ½ mile west of State Road 135, near Greenwood, Johnson County, Indiana (the "Site").
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 November 13, 2001, IDEM issued a Notice of Violation via Certified Mail to:


Mr. David Brizendine, President Ms. Danielle Roell, Registered Agent

David Brizendine, Inc. David Brizendine, Inc.

520 N. Madison Avenue 423 Oak Brook Lane

Greenwood, Indiana 46142 Greenwood, Indiana 46142

5. 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.
6. Pursuant to 327 IAC 15-5-6, all information required under 327 IAC 15-3 and 327 IAC 15-5-5, specifically a NOI letter and all related information, shall be submitted to the commissioner prior to the initiation of land disturbing activities.
7. On January 18, 2001, IDEM received the Respondent's original NOI. The construction project was to commence in September 2000 and be completed by March 2001. The Respondent was notified that it omitted the proof of publication, therefore, the information in the original NOI was deficient.


On August 23, 2001, IDEM received the required proof of publication via facsimile.

On August 23, 2001, IDEM issued a notice of sufficiency to the Respondent for its complete NOI. The Respondent failed to submit a NOI letter prior to initiating land-disturbing activities at the Site on or about September 2000, in violation of 327 IAC 15-5-6.

8. Pursuant to 327 IAC 15-5-7(a), 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.
9. Pursuant to 327 IAC 15-5-7(d), all erosion control measures required to comply with this rule shall meet the design criteria, standards, and specifications for erosion control measures established by the department in guidance documents similar to, or as effective as, those outlined in the Indiana Handbook for Erosion Control in Developing Areas from the division of soil conservation, IDNR and the Field Office Technical Guide from the Natural Resource Conservation Service.
10. Pursuant to 327 IAC 15-5-5(4), the operator must certify that the erosion control measures in the erosion control plan comply with applicable state, county, or local erosion control requirements; the erosion control measures will be implemented in accordance with the plan; and that an appropriate state, county, or local erosion control authority and the soil and water conservation district office have been sent a copy of the plan for review.
11. The erosion and sediment control plan (ESCP) for the Shepherd's Grove, Section I Subdivision construction project was not approved by IDNR or the Johnson County Soil & Water Conservation District (SWCD), prior to commencing land disturbing activities. IDNR reviewed the Respondent's ESCP and noted deficiencies on August 2, 1999, March 13, 2000, and January 8, 2001. The ESCP was approved on May 4, 2001. The Respondent's failure to submit an acceptable ESCP, and its failure to receive approval of its ESCP prior to initiation of land disturbing activities at the Site are in violation of 327 IAC 15-5-7(a) and (d) and 327 IAC 15-5-5(4).
12. Pursuant to 327 IAC 15-5-7(b), the following requirements shall be met on all sites during the period when active land disturbing activities occur:

1. Sediment-laden water shall be detained on-site by erosion control practices that minimize sedimentation in the receiving stream.
2. Appropriate measures shall be taken to minimize or eliminate wastes or unused building materials being carried from the site by run-off.
3. All on-site storm drains shall be protected against sedimentation by appropriate and acceptable methods.
4. Public and private roadways shall be kept clear of accumulated sediment.
5. All on-site storm drains shall be protected against sedimentation by appropriate and acceptable methods.
6. Storm water drainage from adjacent areas that naturally pass through the site shall either be diverted from disturbed areas or the existing channel must be protected or improved to prevent erosion and sedimentation from occurring.
7. 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.

1. Pursuant to 327 IAC 15-5-7(c), during the period of construction all erosion control measures necessary to meet the requirements of this rule shall be maintained by the operator.
2. Based on site visits/inspections conducted by IDNR, the Respondent failed to assure that erosion control measures were implemented and maintained at the Site to assure that off-site sedimentation did not occur during the period of construction activity February 27, 2001 to April 2002. Specifically, storm drain inlets were inadequately protected, conveyance channels were not stabilized or protected, the site remained largely un-vegetated, and sediment was observed to be tracked onto roads and leaving the site at the northwest corner of the Subdivision, in violation of 327 IAC 15-5-7(b) and (c).
3. On April 25, 2002, IDNR conducted a site visit/inspection, noting that the silt fence installed behind the curb was not maintained and was in poor condition. Curb inlet protection was also not being properly maintained causing sediment to wash into the street at several locations. Several inlets were completely unprotected, and others were partially uncovered. Lot pads needed to be seeded to prevent erosion and runoff. Vegetation from utility installation needed repaired. The rip-rap channel in the southwest corner of the small basin near the entrance needed improvement and the Site continues to be in violation of 327 IAC 15-5-7(b) and (c).
4. In recognition of the settlement reached, the Respondent waives any right to administrative and judicial review of this Agreed 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. Within thirty days of the Effective Date of this Order, the Respondent shall address all of the requirements of 327 IAC 15-5-7. The Respondent shall install appropriate erosion control measures in accordance with its approved erosion control plan and the methods outlined in the Indiana Handbook for Erosion Control in Developing Areas from the IDNR, Division of Soil Conservation. These measures shall be adequate in size and location to control the area of runoff and to prevent off-site sedimentation. Documentation of adequate placement and appropriate erosion control measures shall be verified and approved by an IDNR representative.
3. The Respondent shall inspect Shepherd's Grove, Section I Subdivision construction project on a twice-per-month basis and after rainfall events to ensure that all erosion and sediment control measures are properly maintained, (for example, remove accumulated sediment from behind silt fences and storm inlets, assure that conveyance channels and swales are stabilized, and install additional erosion control measures if determined necessary). The inspections and their results shall be documented in a log 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 inspections. The log shall be maintained on site or in a location that it is available for review within 24 hours of the State's request to review the log. These provisions shall remain in effect until the Respondent submits notification of termination of the construction activity as provided by 327 IAC 15-5-11, and a representative of the IDNR approves the adequacy of the remaining permanent erosion control measures, as provided by 327 IAC 15-5-8(b).
4. All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:


Ms. Aletha Lenahan, Enforcement Case Manager

Office of Enforcement

Indiana Department of Environmental Management

100 N. Senate Avenue

P. O. Box 6015

Indianapolis, IN 46206-6015

5. The Respondent is assessed a civil penalty of Twenty Three Thousand, Two Hundred Dollars ($23,200). Said penalty amount shall be due and payable to the Environmental Management Special Fund within thirty days of the Effective Date of this Agreed Order.
6. In the event the terms and conditions of the following paragraphs are violated, the Complainant may assess and the Respondent shall pay a stipulated penalty in the following amount:


Violation Penalty

Failure to comply with Order paragraph No. 2 $500 per week

Failure to comply with Order paragraph No. 3 $500 per week

Failure to comply with Order paragraph No. 4 $500 per week

7. Stipulated penalties shall be due and payable within thirty (30) days after the Respondent receives 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 Respondent 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 Respondent's violation of this Agreed Order or Indiana law, including, but not limited to, civil penalties pursuant to IC 13-30-4.
8. Civil and stipulated penalties are payable to the Environmental Management Special Fund. Payments 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

9. In the event that the civil penalty required by Order paragraph 5, is not paid within thirty (30) days of the Effective Date of this Agreed Order, the 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.
10. The Complainant does not, by its 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, its general stormwater permit, federal or state law.
11. This Agreed Order shall apply to and be binding upon the Respondent, its successors 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.
12. 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.
13. The Respondent shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights are transferred. The Respondent shall ensure that all contractors, firms and other persons performing work under this Agreed Order comply with the terms of this Agreed Order.
14. This Agreed Order shall remain in effect until the Respondent has complied with the terms and conditions of paragraphs 2 through 9 of this Agreed Order and IDEM has issued a close-out letter to the Respondent.

COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:

Department of Environmental Management

By: _________________________ By: ________________________

, Attorney

Office of Legal Counsel

Department of Environmental Management

Date: _______________________ Date: ______________________
 
 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _________ DAY OF __________________________________, 2002.
 
 

For the Commissioner:
 
 
 
 
 
 

Signed on May 8, 2002

Felicia A. Robinson

Deputy Commissioner

for Legal Affairs