) SS: OF ENVIRONMENTAL MANAGEMENT

COUNTY OF MARION )

COMMISSIONER OF THE DEPARTMENT )

OF ENVIRONMENTAL MANAGEMENT, )

)

Complainant, )

)

v. ) Case No. 2002-11275-W

)

OAKMONT DEVELOPMENT CO. 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.
 
 

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 and operates a semipublic wastewater treatment plant (WWTP) and sanitary sewer system, and holds a national pollutant discharge elimination system (NPDES) Permit # IN0059749 (the "Permit") that authorizes the discharge of treated effluent from the WWTP and is subject to effluent limitations, monitoring requirements, and other Permit conditions. The Permit was issued on March 12, 2002, for the WWTP and sanitary sewer system, which currently serves 23 single-family homes in Deer Track Estates Subdivision, (the "Site"), a commercial building, and an 80-acre golf course. The WWTP at the Site is located at 6218 Deer Track Cove, Auburn, Allen County, Indiana. The Outfall 001 discharges from the WWTP to a field tile through Hilkey Ditch to the St. Joseph River, waters of the state, is located in DeKalb 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, IDEM issued a Notice of Violation on April 30, 2002, via Certified Mail to:


Mr. Michael W. Thomas, Registered Agent

Oakmont Development Co. LLC

Deer Track Estates Subdivision and

Wastewater Treatment Plant

1020 East Dupont Road

Fort Wayne, Indiana 46825

5. 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.
6. Pursuant to 327 IAC 3-2-2(d), construction shall not commence until all necessary state approvals and permits are obtained.
7. On September 5, 1995, IDEM granted permit approval to the Respondent for construction of a 7,000 gallon per day WWTP, Permit Approval No. 8906. The WWTP construction permit was granted to serve 21 single-family homes at the Site, per the design capacity. Since the construction of the WWTP, the Respondent caused or allowed construction of a lift station, two additional homes, the Spectrum Engineering commercial building, and an 80-acre, 18-hole golf course at the Site without a valid construction permit. On July 16, 2002, the plans and specifications for the lift station were submitted to IDEM for review/approval. On August 20, 2002, IDEM sent the Respondent a deficiency letter, which indicated that the Respondent failed to submit a complete construction permit application. The lift station was installed without a valid construction permit, in violation of 327 IAC 3-2-1 and 327 IAC 3-2-2(d).
8. On August 8, 2003, IDEM issued a letter to the Respondent stating that, "Pursuant to IC 13-15 and 327 IAC 3; IDEM cannot issue a construction permit for the subject project, of which plans and specifications were received on February 3, 2003, with additional information submitted on May 1, and July 29, 2003, because construction started prior to issuance of the permit." The letter further stated that, "Cursory review of the plans and specifications indicates they appear to be acceptable and this office has no objection to the use of these sewers."
9. Pursuant to 327 IAC 5-2-2, any discharge of pollutants into water of the state as a point source discharge, except for exclusions made in 327 IAC 5-2-4, is prohibited unless in conformity with a valid NPDES permit obtained prior to discharge.
10. On or before November 17, 1999, the WWTP commenced operation to serve the Site. According to IDEM's records, the WWTP has continuously discharged from its WWTP for at least 28 months without a valid permit to a field tile through Hilkey Ditch to the St. Joseph River, waters of the state. The Respondent failed to obtain a valid NPDES permit for this wastewater discharge until March 12, 2002, in violation of 327 IAC 5-2-2.
11. 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 shall maintain compliance with its NPDES Permit, all requirements of 327 IAC 3, 327 IAC 5, and all other applicable rules and statutes.
3. The Respondent is assessed a civil penalty of Seven Thousand Dollars ($7,000). 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 penalty is payable by check to the Environmental Management Special Fund. Payments shall include the Case Number (2002-11275-W) of this action and shall be mailed to:


Cashier

IDEM

100 N. Senate Avenue

P. O. Box 7060

Indianapolis, Indiana 46207-7060

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. 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 its obligation to comply with the requirements of its applicable construction permit 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, its construction permit, 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.

Development Company, LLC

Date: ________________________ Date:
 
 

COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:

Department of Environmental Management

By: _________________________ By: __________________________

Mary Ann Habeeb, Attorney

Office of Legal Counsel Printed: Thomas W. Niezer

Department of Environmental Management Attorney at Law

Barrett & McNagny, LLP

Date: _______________________ Date: ________________________
 
 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _30th____ DAY OF __January___, 2004.
 
 

For the Commissioner:
 
 
 
 
 
 

___________________________

Felicia A. Robinson

Deputy Commissioner

for Legal Affairs