) SS: OF ENVIRONMENTAL MANAGEMENT

COUNTY OF MARION )

COMMISSIONER OF THE DEPARTMENT )

OF ENVIRONMENTAL MANAGEMENT, )

)

Complainant, )

)

v. ) Case No. 2001-11105-W

)

KITE GREYHOUND, LLC, )

)

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. Pursuant to IC 13-30-3-3(c), entry into this Agreed Order does not constitute admission of the alleged violations 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.
 
 

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 Kite Greyhound, LLC, ("Respondent"), who owns and operates the Lowes Home Improvement Center construction project located at 146^th Street and State Road 431, Carmel, Hamilton 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 February 7, 2002, IDEM issued a Notice of Violation via Certified Mail to:


Mr. Thomas K. McGowan, Registered Agent

Kite Greyhound, LLC

6610 N. Shadeland Avenue

Suite 200

Indianapolis, Indiana 46220

5. 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 on-site evaluations 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 from March 2001 to August 2002. Specifically, rock check dams were not properly installed; silt fences were installed but not maintained; storm drain inlets were inadequately protected; conveyance channels were not stabilized or protected; areas at the Site needed seeding to stabilize soil; sediment was observed leaving the site; and sediment was found in a ditch 500 feet from Cool Creek, 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. 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.
3. Civil penalties are payable to the Environmental Management Special Fund. Payments shall include Case Number 2000-11105-W of this action and shall be mailed to:


Cashier

IDEM

100 N. Senate Avenue

P. O. Box 7060

Indianapolis, IN 46207-7060

4. In the event that the civil penalty required by Order paragraph 2, 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 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.
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 its 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. 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.
9. This Agreed Order shall remain in effect until the Respondent has complied with paragraphs 2 through 4 of this Agreed Order and/or 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

Department of Environmental Management

Date: _______________________ Date:

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _________ DAY OF __________________________________, 2003.

For the Commissioner:

Signed 1/3/03

Felicia A. Robinson
Deputy Commissioner
for Legal Affairs