STATE OF INDIANA

COUNTY OF MARION

)
)
)


SS:

BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v.

OAKMONT DEVELOPMENT CO. LLC,

Respondent.

)
)
)
)
)
)
)
)
)
)






Case No. 2001-11006-W

 

AGREED ORDER

 

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.  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, 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 IC 13-13-1-1.

 

2.                  The Respondent is Oakmont Development Co. LLC, (“Respondent”), which owns the construction projects at Bridgewater Subdivision, Sections V and VI, (the “Sites”).  Bridgewater Subdivision, Section V is located at Calais and Rayntham Roads, and Bridgewater Subdivision, Section VI, is located at Ruffner Road, Caravelle Drive and Stoneham Cove, Fort Wayne, Allen County, Indiana.  Utility Center, Inc. d/b/a AquaSource (“AquaSource”), owns and operates a semipublic wastewater treatment plant (“WWTP”), located at 2200 West Cook Road, Fort Wayne, Allen County, Indiana, and collection system, which serves the Sites.

 

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 August 30, 2002, IDEM issued Notices of Violation via Certified Mail to Oakmont Development Co. LLC and AquaSource as Co-Respondents at the addresses below:

 

Mr. Michael W. Thomas,
Registered Agent
Oakmont Development Co. LLC
1020 East Dupont Road
Fort Wayne, Indiana 46825

Mr. Frank A. Hoffman, President
Utility Center, Inc. d/b/a AquaSource
Cherrington Corporate Center
200 Corporate Center Drive
Suite 300
Coraopolis, Pennsylvania 15108

CT Corporation, Registered Agent
Utility Center, Inc. d/b/a AquaSource
1 N. Capitol Avenue
Indianapolis, Indiana 46204

 

5.                  IDEM has pursued the violations against the Co-Respondent AquaSource through Case Number 2001-11484-W.

 

6.                  Pursuant to 327 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.

 

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

 

8.                  On July 9, 2001, AquaSource on behalf of the Respondent submitted construction permit applications, including plans and specifications, to IDEM for review and approval of the Sites' sanitary sewer system projects to connect to AquaSource's sanitary sewer.

 

9.                  On July 20, 2001, IDEM sent notices of deficiency to the Respondent, for the construction permit applications for the Sites.  The notices specified that certain items were needed to complete the applications and advised that the deficiencies needed to be addressed within 60 days of the date of the July 20, 2001, correspondences or the applications would be denied on the basis of incompleteness.

 

10.             On August 24, 2001, IDEM received a letter and an incomplete construction permit application for the Bridgewater Subdivision, which addressed IDEM's July 20, 2001 notice of deficiency for Bridgewater Subdivision, Section VI.

 

11.             On October 15, 2001, IDEM sent permit denial letters to the Respondent for its failure to complete the construction permit applications for the Sites.

 

12.             On November 14, 2001, a representative of IDEM conducted an inspection of the Sites and confirmed that the sanitary sewer construction at both Sites was complete.

 

13.             On November 15, 2001, IDEM received the Respondent's resubmitted plans and specifications for the Sites.

 

14.             On November 28, 2001, IDEM sent letters to the Respondent, with a copy to the Respondent's engineer, Richard Slayback, at Civil Engineering Services, acknowledging the receipt of plans and specifications resubmitted to IDEM on November 15, 2001 for the Sites.  The letters stated that the Respondent's applications were deficient and noted that the sanitary sewers had been built.  The notices specified that the Respondent was required to submit “as-built” plans and inspection reports to confirm that the sewers were correctly installed within 60 days of receipt of the November 28, 2001 letters.

 

15.             On February 6, 2002, IDEM issued letters to the Respondent, for the Sites.  In those letters, IDEM indicated that sanitary sewer construction permits could not be issued for these projects because construction started prior to the issuance of the construction permits.  IDEM's review of the “as-built” plans indicated that they were acceptable.

 

16.             The Respondent commenced construction of the sanitary sewer projects for the Sites prior to obtaining construction permits, in violation of 327 IAC 3-2-1 and 327 IAC 3-2-2(d).

 

17.             In recognition of the settlement reached, the Respondent waives 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 his delegate, and has been received by the Respondent.  This Agreed Order shall have no force or effect until the Effective Date.

 

2.                  The Respondent shall maintain compliance with all requirements of 327 IAC 3 and all other applicable rules and statutes.

 

3.                  The Respondent is assessed a civil penalty of Five Thousand Dollars ($5,000).  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.

 

4.                  In the event that the civil penalty required by Order Paragraph 3, is not paid within 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.

 

5.                  The civil penalties are payable by check to the Environmental Management Special Fund.  Payments shall include the Case Number 2001-11006-W of this action and shall be mailed to:

Indiana Department of Environmental Management
Cashiers Office – Mail Code 50-10C
100 N. Senate Avenue
Indianapolis., Indiana 46204-2251

 

6.                  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 their status or responsibilities under this Agreed Order.

 

7.                  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.

 

8.                  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 their obligation to comply with the requirements of its applicable construction permits or with any other applicable federal or state law or regulation.

 

9.                  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, the Respondent's construction permits, federal or state law.

 

10.             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.

 

11.             This Agreed Order shall remain in effect until the Respondent has complied with Paragraphs 3 through 5 of this Agreed Order and IDEM has issued a close-out letter to the Respondent.

 

TECHNICAL RECOMMENDATION:

 

RESPONDENT:

Department of Environmental Management

 

Oakmont Development Co. LLC

 

 

 

By:

 

 

By:

 

 

Mark W. Stanifer, Chief

 

Printed:

Michael W. Thomas

 

Water Enforcement Section

 

Title:

Registered Agent

 

Office of Enforcement

 

 

 

 

Department of Environmental Management

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

COUNSEL FOR COMPLAINANT:

 

COUNSEL FOR RESPONDENT:

Department of Environmental Management

 

 

 

 

 

By:

 

 

By:

 

 

Mary Ann Habeeb, Attorney

 

 

 

 

Office of Legal Counsel

 

 

 

 

Department of Environmental Management

 

 

 

 

 

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

 

DAY OF

 

, 200

 

.

 

 

For The Commissioner:

 

 

 

Signed on June 3, 2005

 

Matthew T. Klein

 

Assistant Commissioner

 

of Compliance and Enforcement