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. 2001-10956-W
)
HAMILTON COUNTY BOARD OF COUNTY )
COMMISSIONERS, AND )
MILESTONE CONTRACTORS, L.P., )
)
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 Respondent's entry into this Agreed Order shall not constitute a waiver of any defense, legal or equitable, which the Respondent may have in any future administrative or judicial proceeding.
I. FINDINGS OF FACT
1. 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.
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 8, 2002, IDEM issued a Notice of Violation via Certified Mail to:
Mr. Steven Dillinger, President Mr. Ted Lucas, President
Board of Commissioners Milestone Contractors, L.P.
Hamilton County Commissioners 5950 S. Belmont Ave.
One Hamilton County Square, Suite 157 Indianapolis, Indiana 46242
Noblesville, Indiana 46060
Mr. Thomas L. Mattix, Registered Agent
Milestone Contractors, L.P.
5400 West 86th St.
Indianapolis, Indiana 46268
5. On-site evaluations for erosion and sediment control were conducted at the Site during 1999, 2000, and 2001, and a record review has been conducted by representatives of IDEM. The following violations were alleged to be in existence or observed at the time of these on-site evaluations and record review:
A. Pursuant to 327 IAC 15-5-7(b), the following requirements for erosion control measures shall be met on the Site during the period when 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.
Pursuant to 327 IAC 15-5-7(c), during the period of construction at the Site, all erosion control measures necessary to meet the requirements of this rule shall be maintained by the operator.
Pursuant to 327 IAC 15-5-10(c), any person causing or contributing to a violation of any provisions of this rule shall be subject to enforcement and penalty under IC 13-14-10, IC 13-15-7, and IC 13-30.
Based on site visits/inspections conducted by IDNR and the Hamilton County SWCD, the Respondents, failed to assure that erosion control measures were implemented and maintained at the Site from on or before August 5, 1999 to November 1, 2001, and failed to assure that off-site sedimentation did not occur during the period of construction activity from on or before January 13, 2000 to November 1, 2001. Specifically the following alleged violations of 327 IAC 15-5-7(b) and (c) were in existence at the time of the site visits/inspections:
1. Sediment-laden water was not detained on-site by erosion control practices that minimize sedimentation in the receiving stream, and appropriate measures were not taken to minimize or eliminate wastes or unused building materials being carried from the site by run-off, as noted during inspections conducted on August 5, 1999, September 3, 1999, September 24, 1999, October 27, 1999, January 13, 2000, February 25, 2000, March 7, 2000, April 13, 2000, June 16, 2000, March 16, 2001, March 22, 2001, April 5, 2001, April 11, 2001, May 18, 2001, May 25, 2001, June 15, 2001, and November 1, 2001.
2. Run-off from the disturbed area was not controlled by either appropriate vegetative practices, the implementation of an erosion control plan that includes appropriate erosion control measures, or both, as noted during inspections conducted on August 5, 1999, September 3, 1999, September 10, 1999, September 24, 1999, October 27, 1999, January 13, 2000, February 25, 2000, March 7, 2000, April 13, 2000, June 16, 2000, November 13, 2000, November 20, 2000, March 16, 2001, March 22, 2001, April 5, 2001, May 18, 2001, May 25, 2001, June 15, 2001, and November 1, 2001.
3. During the period of construction at the Site, all erosion control measures necessary to meet the requirements of this rule were not maintained by the operator, as noted during inspections conducted on September 3, 1999, November 19, 1999, January 13, 2000, March 7, 2000, June 16, 2000, November 20, 2000, February 2, 2001, March 16, 2001, March 22, 2001, April 5, 2001, April 11, 2001, June 15, 2001, and November 1, 2001.
B. Pursuant to IC 13-18-4-5, it is unlawful for any person to throw, run, drain, or otherwise dispose into any of the streams or waters of Indiana; or cause, permit, or suffer to be thrown, run, drained, allowed to seep, or otherwise disposed into any waters; any organic or inorganic matter that causes or contributes to a polluted condition of any waters, as determined by a rule of the board adopted under sections 1 and 3 of this chapter.
The Respondents caused or contributed to a polluted condition of waters of the state by causing the discharge of sediment from the Site into waters of Indiana as noted during inspections conducted on January 13, 2000, February 25, 2000, April 13, 2000, June 16, 2000, March 16, 2001, and May 18, 2001, violation of IC 13-18-4-5.
6. On February 15, 2002, the Respondents met with IDEM to discuss issues regarding this case, and on March 7, 2002, the Respondents submitted a written response to the Notice of Violation and the issues discussed during the February 15, 2002 meeting. Among other things, the Respondents' response stated that they believe that erosion control measures utilized at the site (while not necessarily installed to the satisfaction of the inspector) were sufficient to minimize sedimentation in the receiving stream and met the performance-based requirements of the regulations. The Respondents noted that Milestone Contractors, L.P. improved its performance over the course of the project and often satisfied the desires of the inspector. They noted that Utility work performed by others and outside the control of Milestone often negatively impacted the performance of the installed erosion control measures. They contended that Milestone Contractors, L.P. has taken a proactive approach to erosion control by implementing a training and awareness program utilizing qualified trainers and has also developed a process to ensure that Milestone personnel, inspectors, and project engineers are in communication and agreement as to what is needed on their projects. They noted that they have taken steps to upgrade their efforts to further minimize off-site sedimentation and stated that Milestone Contractors, L.P. is committed to environmental compliance. The Respondents noted in the response that they agree that various issues at the project site could have been handled differently and may have enhanced the erosion control performance obtained. However, they noted in the response that Milestone Contractors, L.P. believes that the erosion control measures utilized met the requirements of 327 IAC 15-5-7 and minimized sediment-containing storm water from leaving the site.
7. IDEM and IDNR agree that the Respondents improved some of their erosion control efforts during the period of construction and there were at times some structures present to control sediment, but there were many times that the erosion control at the Site did not meet the standards of 327 IAC 15-5-7(d), in that all erosion control, including sediment control measures, did not meet the design criteria, standards, and specifications for erosion control measures in the Indiana Handbook for Erosion Control form Developing Areas. In many instances, the erosion control practices that the Respondents installed did not meet the basic specifications, were not adequately maintained, and did not appropriately minimize off-site sedimentation.
8. In recognition of the settlement reached, 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. Within 7 days of the Effective Date, the Respondents shall implement and initiate maintenance of adequate erosion control measures at the Site as specified in the approved erosion control plan and provided by 327 IAC 15-5.
3. The Respondents shall inspect the Site on a weekly 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 inspection. The log shall be maintained on site so that it is available for review. These provisions shall remain in effect until the Respondents submit 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 effect until completion of the project and submittal of a Notice of Termination. The Respondents shall continue to inspect the site and maintain erosion control measures until termination of the project. For the purposes of this provision, a "rainfall event" is defined as any precipitation or precipitation runoff event that is equal to or greater than 0.1 inches of precipitation.
4. Respondents are assessed a civil penalty of Eighteen Thousand Dollars ($18,000). 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.
5. In the event the following terms and conditions are violated, the Complainant may assess, and the Respondents shall pay, a stipulated penalty in the following amounts:
Violation Penalty
Paragraph 2; $500 per week for failure to timely implement and initiate maintenance of adequate erosion control measures, or to timely install all additional erosion control measures and initiate any additional maintenance procedures that may be included in the approved erosion control plan,
Paragraph 3; $500 per week for failure to inspect the Site on a weekly basis and after rainfall events to ensure that all erosion and sediment control measures are properly maintained, including removing accumulated sediment from behind silt fences and from inlets, assuring that conveyance channels and swales are stabilized, and installing additional erosion control measures if determined necessary.
6. Stipulated penalties shall be due and payable within thirty (30) days after 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 Respondents' violation of this Agreed Order, or Indiana law, including but not limited to civil penalties pursuant to IC 13-30-4.
7. 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
8. In the event that the civil penalty required by paragraph 4 is not paid within thirty (30) days of the Effective Date of this Agreed Order, 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.
9. 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.
10. 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.
11. The Respondents shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights to the project are transferred. 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, and compliance with its terms, shall resolve all of Respondents' alleged violations of 327 IAC 15-5-7 and Indiana Code 13-18-4-5 which were noted in the inspections listed in paragraph 5A and 5B of this Agreed Order.
13. This Agreed Order shall remain in effect until Respondents have complied with the requirements of paragraphs 2 through 8 of this Agreed Order and Complainant issues a close-out letter.
TECHNICAL RECOMMENDATION: RESPONDENT:
Department of Environmental Management Hamilton County Board of Commissioners
By: _________________________ By: _________________________
Mark W. Stanifer, Section Chief Steven Dillinger
Office of Enforcement President
Date: _______________ Date: _______________
COUNSEL FOR HAMILTON COUNTY BOARD OF COMMISSIONERS:
By: ________________________
Date: _______________
COUNSEL FOR COMPLAINANT: RESPONDENT:
Department of Environmental Management Milestone Contractors, L.P.
By: _________________________ By: ________________________
Lindsay T. Boyd Ted Lucas
Office of Legal Counsel President
Department of Environmental Management
Date: _______________ Date: _______________
COUNSEL FOR MILESTONE CONTRACTORS, L.P.:
By: ________________________
Date: _______________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _____ DAY OF ____________________, 2002.
For the Commissioner,
__Signed 9/9/02________
Felicia A. Robinson
Deputy Commissioner
for Legal Affairs