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. 2002-11549-W ) KERSTIENS CORPORATION, INC., ) ) Respondent. )
 
 
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.
 
 
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 Respondent is Kerstiens Corporation, Inc. (Respondent), which owns and operates a property development company, having its main business office located at 215 Mill Street, in Jasper, Indiana. The Respondent is developing a 41.41 acre residential and commercial subdivision known as Mill Creek Park (or Mill Creek Park I), located at the intersection of 36th Street and Portersville Road, in Jasper, Dubois County, Indiana (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 November 26, 2003, IDEM issued a Notice of Violation via Certified Mail to:
 
 
Mr. Jerome Kerstiens, President Kerstiens Corporation, Inc.

1345 Cobblestone Rd.

Jasper, IN 47546

 		Mr. Jerome Kerstiens, Registered Agent Kerstiens Corporation, Inc.

215 Mill St.

P.O. Box 162

 Jasper, IN 47546
5. Inspections and subsequent records review were conducted by representatives of IDEM, the Indiana Department of Natural Resources (IDNR), and/or the Dubois County Soil and Water Conservation District (SWCD). The following violations were in existence or observed at the time of these inspections and records review:
    1. Pursuant to 327 IAC 15-5-5(4), the operator must certify that the erosion control measures in the erosion control plan, (also known as an erosion and sediment control plan or ESCP) comply with applicable state, county, or local erosion control requirements; the erosion control measures will be implemented in accordance with the plan; and that an appropriate state, county, or local erosion control authority and the soil and water conservation district office have been sent a copy of the plan for review.


      2. Pursuant to 327 IAC 15-5-7(a), the operator shall develop an erosion control plan, (also known as an erosion and sediment control plan or ESCP), in accordance with the requirements under this section. The ESCP must assure that erosion control measures are implemented and maintained, and that off-site sedimentation does not occur during the period of construction activity at a site.

      Based on inspections conducted by representatives of IDNR and/or the Dubois County SWCD, the Respondent failed to implement the ESCP, and therefore failed to assure that the erosion control measures were maintained and that off-site sedimentation did not occur, according to the approved ESCP at the Site during the period of construction activity and/or active land disturbing activity, in violation of 327 IAC 15-5-5(4) and 327 IAC 15-5-7(a).

    2. 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. 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 activity at a site, all erosion control measures necessary to meet the requirements of 327 IAC 15-5-7 shall be maintained by the operator.

Pursuant to 327 IAC 15-5-7(d), all erosion control measures required to comply with this rule shall meet the design criteria, standards, and specifications for erosion control measures established by the department in guidance documents similar to, or as effective as, those outlined in the Indiana Handbook for Erosion Control in Developing Areas (now titled Indiana Stormwater Quality Manual) from the Division of Soil Conservation, IDNR and the Field Office Technical Guide from the Natural Resource Conservation Service (NRCS).

Based on site visits and inspections conducted by representatives of IDNR and/or the Dubois County SWCD, the Respondent failed to assure that erosion control measures, according to the approved ESCP, were implemented and maintained at the Site and assure that off-site sedimentation did not occur during the period of construction activity and/or active land disturbing activity, in violation of 327 IAC 15-5-7(b), (c), and (d).
    1. Pursuant to 327 IAC 2-1-6(a)(1), all waters at all times and at all places, shall meet the minimum conditions of being free from substances, materials, floating debris, oil, or scum attributable to municipal, industrial, agricultural, and other land use practices, or other discharges:
    1. that will settle to form putrescent or otherwise objectionable deposits;
    2. that are in amounts sufficient to be unsightly or deleterious;
    3. that produce color, visible oil sheen, odor, or other conditions in such degree as to create a nuisance;
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 IC 13-18-4-1 and IC 13-18-4-3.

Pursuant to IC 13-30-2-1, no person may discharge, emit, cause, allow, or threaten to discharge, emit, cause, or allow any contaminant or waste, including any noxious odor, either alone or in combination with contaminants from other sources, into the environment or into any publicly owned treatment works in any form which causes or would cause pollution which violates or would violate rules, standards, or discharge or emission requirements adopted by the appropriate board pursuant to IC 13.

Site inspections conducted by representatives of IDNR and/or the Dubois County SWCD during the period of construction activity and/or active land disturbing activity, revealed that the Respondent caused or allowed the discharge of sediment into the Mill Creek waterway, a water of the state, that settled to form objectionable deposits and/or in an amount sufficient to be unsightly or deleterious, in a manner that caused a polluted condition, in violation of 327 IAC 2-1-6(a), a rule of the Water Pollution Control Board, and therefore also violated IC 13-18-4-5, and IC 13-30-2-1.

 6. The Notice of Intent (NOI) was submitted by the Respondent to IDEM on July 20, 1998, to comply with the NOI letter requirements of 327 IAC 15-5 for a National Pollutant Discharge Elimination System (NPDES) General Permit for Storm Water Runoff Associated with Construction Activity. The NOI described Mill Creek Park as a construction project of a residential and commercial subdivision with a total area of 41.41 acres to be disturbed, and the ESCP submitted to the Dubois County SWCD was submitted with the NOI pursuant to requirements of 327 IAC 15-5.
    1. The Notice of Sufficiency (NOS) was issued to the Respondent by IDEM on August 10, 1998. The NOS indicated that the NOI, submitted to IDEM on July 20, 1998, was sufficient to comply with the requirements of 327 IAC 15-5.
    2. The Dubois County SWCD notified IDEM and the Respondent on September 3, 1998, that the Respondent's ESCP submitted for the Site had been reviewed and had been found to contain the required elements and met the intent of 327 IAC 15-5.
    3. IDEM issued a Warning of Noncompliance (WONC) to the Respondent on December 3, 1998, based on deficiencies and violations observed at the Site during an inspection conducted by representatives of IDNR and/or the Dubois County SWCD on November 10, 1998.
    4. IDNR issued a WONC to the Respondent on September 30, 1999, based on deficiencies and violations observed at the Site during inspections and on-site evaluations conducted by representatives of IDNR and/or the Dubois County SWCD. The Respondent was required to address the deficiencies and violations by October 18, 1999.
    5. During the inspection conducted by representatives of IDNR and/or the Dubois County SWCD on February 19, 2002, the Respondent was notified at the conclusion of inspection that the Site would be referred to IDEM for enforcement based on deficiencies and violations observed at the Site.
    6. The Respondent submitted a Notice of Termination (NOT) for Mill Creek Park I on October 10, 2003.
    7. Representatives of IDEM and the Respondent conducted a telephonic settlement conference on February 11, 2004.
    8. 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 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 the applicable provisions, including but not limited to 327 IAC 15-5-5(4), 327 IAC 5-5-7, 327 IAC 2-1-6(a)(1), IC 13-18-4-5, and IC 13-30-2-1.
    3. All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:
Ms. Stacie Tucker, Environmental Manager

Water Enforcement Section

Office of Enforcement Indiana Department of Environmental Management
    1. N. Senate Avenue
P. O. Box 6015

Indianapolis, IN 46206-6015
    1. The Respondent is assessed a civil penalty of twenty-six thousand, two hundred, and fifty dollars ($26,250). Said civil penalty amount shall be due and payable to the Environmental Management Special Fund within 30 days of the Effective Date of this Agreed Order.
    2. The civil penalty is payable by check to the Environmental Management Special Fund. Payments shall include the Case Number (2002-11549-W) of this action and shall be mailed to:


      3. Cashier

      IDEM

      100 N. Senate Avenue

      P. O. Box 7060

      Indianapolis, IN 46207-7060

    3. In the event that the civil penalty required by Order Paragraph 5, 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.
    4. This Agreed Order does not, in any way, relieve the Respondent of its obligation to comply with the applicable requirements of federal or state law or regulation.
    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 applicable requirements of federal or state law or regulation.
    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 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 Order Paragraphs 3 through 6 of this Agreed Order and IDEM has issued a close-out letter to the Respondent.
TECHNICAL RECOMMENDATION: RESPONDENT:

Department of Environmental Management Kerstiens Corporation, Inc.

By: ______________________________ By: ______________________________

Mark W. Stanifer

Section Chief, Water Section Printed: _____________________________

Office of Enforcement

Title: ______________________________ Date: _______________________________ Date: ______________________________
 
 
 
 
 
 

COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:

Department of Environmental Management

By: ______________________________ By: ______________________________

Office of Legal Counsel

Date: ______________________________ Date: ______________________________
 
 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _______________ DAY OF __________________________, 200___.
 
 

For The Commissioner:

Signed 3/23/04

____________________________________

Felicia A. Robinson

Deputy Commissioner for Legal Affairs