Agreed Order

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. 2002-10888-W

)

PENN OAKS ENTERPRISES, LLC, )

)

and )

)

FLEMING REALTY, INC., )

As an Applicant for Penn Oaks Enterprises, LLC)

)

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 the Respondents may have in any future administrative or judicial proceeding, except a proceeding to enforce this Order.

I. FINDINGS OF FACT

1.         The Complainant is the Commissioner (Complainant) of the Indiana Department of Environmental Management, a department of the State of Indiana created by Indiana Code (IC) 13-13-1-1.

2.         The Respondents are Penn Oaks Enterprises, LLC (first Respondent), which owns and operates a real estate development firm, having its main business office located at 3235 45^th Street, in Highland, Indiana.

            The first Respondent’s Applicant is Fleming Realty, Inc. (Applicant and second Respondent), which acts as an agent and as a property management company for the first Respondent, having its main business office located at 736 N. Main Street, in Crown Point, Indiana.

            The Respondents developed a 39 lot residential subdivision known as Penn Oak Estates, Unit I, located at the intersection of East South Street and Route 53, Crown Point, Lake County, Indiana (Site). Penn Oak Estates, Unit I sends its domestic wastewater to the City of Crown Point for treatment at the publicly owned treatment works (POTW). The City of Crown Point’s POTW is located at 1321 Merrillville Road, Crown Point, Lake County, Indiana.

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 December 30, 2003, IDEM issued a Notice of Violation (NOV) via Certified Mail to the Respondents at the addresses below:

Mr. Thomas J. Fleming, President

Fleming Realty, Inc.

736 N. Main Street

Crown Point, IN 46307

Ms. Patricia A. Fleming, Secretary

Fleming Realty, Inc.

841 W. South Street

Crown Point, IN 46307

Subsequent to the issuance of the NOV and proposed Agreed Order (PAO), it was determined that the first Respondent (Penn Oaks Enterprises, LLC), is and has been the owner and operator of the Site. Fleming Realty, Inc. acted as an agent and Applicant for Penn Oaks Enterprises, LLC; therefore, Fleming Realty, Inc. was incorrectly indicated on the NOV as the primary Respondent.

5.                  The Respondents waive the issuance of a Notice of Violation (NOV) and waives the settlement period of 60 days as provided for by IC 13-30-3-3.

6.                  Pursuant to 327 Indiana Administrative Code (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 327 IAC 3-2-2(d), construction shall not commence until all necessary state approvals and permits are obtained.

Based on record reviews conducted by IDEM representatives, the Respondents had commenced and completed the construction and/or installation of approximately 3,610 linear feet of 8-inch diameter sanitary sewer line on or before November 11, 1999, prior to obtaining a valid construction permit or approval, in violation of 327 IAC 3-2-1 and 327 IAC 3-2-2(d).

7.                  On August 17, 2001, IDEM’s Office of Water Quality (OWQ), Facility Construction Permit Section received a construction permit application (Project No. M-13880) which listed Fleming Realty, Inc. as the Applicant. The permit application was submitted with a cover letter from the Respondents’ engineering firm (engineer), which explained a portion of the project (identified as “Unit I” by IDEM’s OWQ representative) was constructed and/or installed prior to the submission of a completed construction permit application.

8.                  On August 21, 2001, a representative of IDEM’s OWQ, Facility Construction Permit Section conducted a record review of the Site and placed a telephone call to the Respondents’ engineer regarding the plans and specifications (As-Builts) for the Site (Project No. M-13880). The Respondents’ engineer confirmed that the construction of the sanitary sewer line for Penn Oak Estates, Unit I commenced during October 1999 and was completed during November 1999.

9.                  On September 14, 2001, IDEM issued a deficiency letter to the Applicant for administrative and technical details that were identified in the construction permit application for Penn Oaks Estate. Specifically, the letter of deficiency required the Respondents’ sanitary sewer line construction project to be separated into the Unit I As-Builts project and the yet to be constructed Penn Oak Estates, Unit II. The deficiency letter stated that the Respondents’ construction permit application would be denied for incompleteness within 60 days of the date of the September 14^th letter if the deficiencies were not corrected or resolved.

10.              On September 25, 2001, IDEM representatives received some of the required information for the completion of the Penn Oak Estates, Unit I construction permit application as requested in the September 14^th deficiency letter, however the Respondents’ As-Built application was still incomplete.

11.              On October 29, 2001, IDEM representatives received the rest of the required information for the completion of the Penn Oak Estates, Unit I As-Built construction permit application as requested in the September 14^th deficiency letter.

12.              On November 21, 2001, IDEM sent a letter to the Applicant acknowledging receipt of plans and specifications received on August 17, September 25, and October 29, 2001. The letter noted that Respondents’ As-builts indicated that the Respondents’ plans and specifications for the construction and/or installation of approximately 3,610 linear feet of 8-inch diameter sanitary sewer line were reviewed. IDEM representatives’ review of the As-builts indicated that the plans and specifications appeared acceptable pursuant to 327 IAC 3-6, in compliance with the engineering requirements.

13.              On December 26, 2001, IDEM’s OWQ, Facility Construction Permit Section received a construction permit application which listed Fleming Realty, Inc. as the Applicant. The Respondents’ engineer submitted the permit application for Penn Oak Estates, Unit II (Project No. M-14144) as required in the September 14^th letter of deficiency.

The construction permit application submitted by the engineer for Penn Oak Estates, Unit II (Project No. M-14144) on December 26, 2001, was deemed a complete application by IDEM representatives for the sanitary sewer service line construction project.

14.              On September 23, 2002, a representative of IDEM’s OWQ, Facility Construction Permit Section conducted a record review of the Site and placed a telephone call to the Applicant regarding the construction and/or installation dates of the sanitary sewer line at Penn Oak Estates, Unit I. The Applicant referred the IDEM representative to the engineer for confirmation of the commencement and completion of construction at the Site.

15.              Representatives of IDEM and the engineer, authorized to represent the Respondents, conducted a settlement conference on January 20, 2004.

16.              In recognition of the settlement reached, the Respondents and the Applicant 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 3-2-1 and 327 IAC 3-2-2(d); as cited in the Findings of Fact.

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

Ms. Stacie Tucker, Environmental Manager

Office of Enforcement

Indiana Department of Environmental Management

100 North Senate Avenue

P.O. Box 6015

Indianapolis, IN 46206-6015

4.                  The Respondents jointly and severally are assessed a civil penalty of five thousand six hundred and seventy-five dollars ($5,675). 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.

5.                  Civil penalties are jointly and severally payable by check to the Environmental Management Special Fund. Checks shall include the Case Number of this action (Case No. 2001-10888-W) and shall be mailed to:

Cashier

Indiana Department of Environmental Management

100 N. Senate Avenue

P. O. Box 7060

Indianapolis, IN 46207-7060

6.                  In the event that the civil penalty required by Order Paragraph 4, is not paid within 30 days of the Effective Date of this Agreed Order, the Respondents 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.

7.                  This Agreed Order shall apply to and be binding upon the Respondents, their officers, directors, principals, agents, successors, subsidiaries, 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 the Respondents’ status or responsibilities under this Agreed Order.

8.                  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.

9.                  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 Respondents of its obligation to comply with the requirements of any Permits or with any other applicable federal or state law or regulation.

10.              The Complainant does not, by its approval of this Agreed Order, warrant or aver in any manner that the Respondents’ compliance with any aspect of this Agreed Order will result in compliance with the provisions of the Clean Water Act, any Permits, or state law.

11.              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.

12.              This Agreed Order shall remain in effect until the Respondents complies with the terms of Order Paragraphs 3 through 6 and until IDEM issues a Close-Out letter to the Respondents.