STATE OF
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BEFORE THE INDIANA DEPARTMENT
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COMMISSIONER
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ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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v. |
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CASE
NO. 2002-12535-W |
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Richard |
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Trucking, Inc., |
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Respondent. |
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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
2.
The Respondent is Richard Ness Excavating and
Trucking, Inc. (Respondent), which owns and operates the Richard Ness
Excavating and
The Respondent’s sanitary sewer extension consists of 683.9 linear feet of
8-inch diameter sanitary sewer that is connected and in use at the Site. The sewer currently serves one existing commercial lot and it is
designed to served three future commercial lots with an average flow of 700 gallons
per day (gpd) (2,800 gpd,
peak) to the City of Huntington’s sanitary sewer collection system and its publicly
owned treatment works (POTW).
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
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Mr.
Paul Richard Ness, President |
Mr.
Richard Ness, Registered Agent |
5.
Record reviews were conducted by a representative of
IDEM’s Office of Water Quality (OWQ) and the City of Huntington, Indiana (the
City). The following violations were in
existence or observed at the time of these record reviews.
6.
Pursuant to 327 Indiana Administrative Code (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.
Pursuant to 327 IAC
Based on record reviews conducted by IDEM representatives, including but not
limited to construction permit application “As-built” plans and specifications
(As-builts) submitted on January 14, 2002, the
Respondent commenced and completed construction, installation, and/or
modification of approximately 600 linear feet of sanitary sewer line on or
before January 14, 2002 in violation of 327 IAC 3-2-1 and 327 IAC 3-2-2(d).
7.
Pursuant to 327 IAC 3-6, the technical standards
established in this rule are applicable to the design and construction of all
new or modified sanitary collection systems subject to this article that are
constructed in the state of Indiana and to the applications, plans, and
specifications of the new or modified collection system.
Based on record reviews conducted by IDEM representatives, including but not
limited to reviews of the administrative and technical requirements in the As-builts, the Respondent failed to design and/or construct
all of the new and/or modified sanitary sewer line according to the technical
standards, in violation of 327 IAC 3-6.
8.
On
No City inspection or oversight occurred at the Site during the construction,
installation, and/or modification of the Respondent’s sanitary sewer extension;
however, a representative of the City identified the presence of the Respondent’s
constructed water main and sanitary sewer facilities in existence without
appropriate permits during a city plan review conducted during the fall and
winter of 2001.
9.
On
10.
On
11.
During a telephone call conducted by an IDEM representative
on
12.
On November 23, 2004, the Respondent submitted a
revised construction permit application with As-built plans and specifications for
approximately 683.9 L.F. of 8-inch diameter sanitary sewers from manhole 3 and
manhole 6 to serve one existing and three future commercial lots with an
average flow of 700 gpd (2,800 gpd,
peak) at the Richard Ness Excavating and Storage Buildings (Project No.
M-14163X). The Respondent submitted
additional information to complete the As-built submittal on
13.
On
14.
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.
Respondent shall comply with 327 IAC 3-2.
3.
Respondent is assessed a civil penalty of One
Thousand Five Hundred Dollars ($1,500).
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.
The civil penalty is 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
5.
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, 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.
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.
9.
This Agreed Order shall remain in effect until the
Respondent has complied with the terms and conditions of Paragraphs 3 through 5
of this Agreed Order and IDEM issues a “close out” letter to the Respondent.
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TECHNICAL RECOMMENDATION: |
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RESPONDENT: |
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Department of Environmental Management |
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Richard Ness Excavating and Trucking, Inc. |
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By: |
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By: |
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Mark W. Stanifer |
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Printed: |
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Section Chief, Water Section |
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Title: |
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Office of Enforcement |
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COUNSEL FOR COMPLAINANT: |
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COUNSEL FOR RESPONDENT: |
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Department of Environmental Management |
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By: |
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By: |
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Joseph H. Merrick |
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Office of Legal Counsel |
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Date: |
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Date: |
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APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF
ENVIRONMENTAL |
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MANAGEMENT THIS |
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OF |
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200 |
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For The Commissioner: |
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Signed on |
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Matthew T. Klein |
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Assistant Commissioner |
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of Compliance and Enforcement |
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