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. 2001-10844-W

)

CHRIS McGEHEE, )

d/b/a Land realty COMPANY, )

ROBERT'S FARM 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. Respondent is Chris McGehee, d/b/a, Land Realty Company ("Respondent"), who owns and operates Robert's Farm Subdivision, located east of Concord Road and south of New London Road (NE Qtr. of Sec. 2 T2N, R8E), near Scottsburg, Scott 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 30, 2001, IDEM issued Notice of Violation via Certified Mail to:


Mr. Chris McGehee,

d/b/a Land Realty Company

Chris McGehee, President and Registered Agent

2892 Georgetown Greenville Road

Georgetown, Indiana 47122

5. Pursuant to 327 IAC 15-2-5(a), any person subject to the requirements of this article shall submit a 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 Notice of Intent (NOI) letter and all related information, shall be submitted to the commissioner of IDEM prior to the initiation of land disturbing activities.
7. On September 24, 2001, Randy Braun, Division of Soil Conservation IDNR received a letter and a $100 check for the NOI fee payment, indicating the Respondent's notice of intent to construct the Robert's Farm subdivision. The letter was mailed to IDNR from Edam Contracting Corporation, the Respondent's contractor. On October 22, 2001, after IDEM received the letter from IDNR, IDEM notified the Respondent's contractor via telephone that the NOI was deficient. On April 11, 2002, IDEM received a complete NOI from the Respondent for the Site. The Respondent failed to submit the NOI letter to IDEM prior to initiating land disturbing activities at the Site on or about July 31, 2001, in violation of 327 IAC 15-2-5(a) and 327 IAC 15-5-6.
8. Pursuant to 327 IAC 15-5-7(a), the operator shall develop an erosion control plan, (also known as an erosion and sediment control plan or ESCP), in accordance with the requirements under this section. The ESCP 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.
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 ESCP 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. On June 4, 2002, IDNR approved the ESCP. The Respondent failed to submit an ESCP for the Site to IDNR or the Scott County SWCD prior to land disturbing activities, 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. Sediment tracked from the site onto public or private roadways shall be minimized.
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 activity at a site, all erosion control measures necessary to meet the requirements of this rule shall be maintained by the operator.
2. Based on site visits and inspections conducted by IDNR, the Respondent failed to assure that erosion control measures were implemented and maintained at the Site from July 31, 2001 to October 29, 2001, and assure that off-site sedimentation did not occur during the period of construction activity from July 31, 2001 to present. Specifically, it was observed that disturbed areas have not been adequately protected through seeding or other appropriate erosion and sediment control measures, storm drains and outlets were inadequately stabilized, existing erosion control measures were not maintained, sediment was found on the road sides, and the site conditions presented a high potential for off-site sedimentation, in violation of 327 IAC 15-5-7(b) and (c).
3. 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. Immediately, upon the Effective Date of this Order, the Respondent shall implement and maintain all necessary erosion and sediment control measures to prevent sediment from leaving the site and entering the waters of the state, in accordance with 327 IAC 15-5-7, IC 13-18-4-5 and 327 IAC 2-1-6(a)(1).
3. The Respondent shall inspect Robert's Farm, 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 so that it is available for review. 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). The requirements of this paragraph shall remain in full force regardless of the status of the Agreed Order. The Respondent shall continue to inspect the site and maintain erosion control measures until termination of the project, which does not preclude IDEM from issuing a close-out letter if the Respondent satisfies all other provisions of this Agreed Order.
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. Respondent is assessed a civil penalty of Sixteen Thousand, Five Hundred Dollars ($16,500). 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.
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. 3 $1000 per week

7. Stipulated penalties shall be due and payable within 30 days after 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 Respondents 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 by check to the Environmental Management Special Fund. Payments shall include the Case Number 2001-10567-W, 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 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.
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. 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 Respondent has complied with 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: __________________________

Mary Ann Habeeb, Attorney

Office of Legal Counsel Printed: John A. Kraft, Attorney

The Department of Environmental Management Young, Lind, Endres & Kraft

Date: _______________________ Date: _________________________
 
 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS 14^th DAY OF August 2002.
 
 

For the Commissioner:
 
 
 
 
 
 

___________________________

Felicia A. Robinson

Deputy Commissioner

for Legal Affairs