STATE OF INDIANA

COUNTY OF MARION

)
)
)


SS:

BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v.

THE DREES COMPANY,

Respondent.

)
)
)
)
)
)
)
)
)
)






Case No. 2004-13708-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.  Respondent's entry into this Agreed Order shall not constitute a waiver of any defense, legal or equitable, which 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.                  Respondent is The Drees Company ("Respondent"), who owns and operates a subdivision under construction known as Beckett Landing located on Nowlin Avenue, Greendale, in Dearborn 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 March 3, 2004, IDEM issued a Notice of Violation via Certified Mail to:

 

 

The Drees Company
David G. Drees, President
22B Linden Hill Dr.
Crescent Springs, KY  41017

The Drees Company
Jay O. Ingram, Jr., Registered Agent
21101 Bellemeade Dr. HVL
Lawrenceburg, IN  47025

 

5.                  Pursuant to 327 IAC 15-5-7(b), both before and after its November of 2003 revisions, 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 from 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)               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), as effective prior to November of 2003, during the period of construction at a site, all erosion control measures necessary to meet the requirements of 327 IAC 15-5-7 shall be maintained by the operator.  The Respondent submitted the Notice of Intent ("NOI") prior to November of 2003, and has not submitted another NOI for the Site.  Therefore the above noted provisions remain in effect.

 

Based on site visits and inspections conducted by the Indiana Department of Natural Resources ("IDNR") and Dearborn County Soil and Water Conservation District ("SWCD"), The Respondent failed to implement and maintain erosion control measures at the Site necessary to satisfy the requirements of 327 IAC 15-5 during the period of construction activity from June 30, 1999 to December 22, 2003.  Specifically:

 

(1)               Sediment-laden water was not detained on site by erosion control practices that minimize sedimentation in the receiving stream.  Appropriate measures were not taken to minimize or eliminate wastes or unused building materials from being carried from the site by run-off.  Additionally, run-off from a disturbed area was not controlled by either appropriate vegetative practices, the implementation of an erosion control plan that includes appropriate erosion control measures, or both.  These violations were documented during inspections conducted on June 8, 2001, August 1, 2001, April 29, 2002, August 16, 2002, September 17, 2002, January 31, 2003, May 16, 2003, June 25, 2003, July 21, 2003, September 4, 2003, September 23, 2003, October 8, 2003, December 22, 2003, and February 10, 2004.

 

(2)               Sediment tracked from the site onto public or private roadways was not minimized, and public and private roadways were not kept clear of accumulated sediment, as documented during inspections conducted on August 1, 2001, April 29, 2002, March 14, 2003, May 16, 2003, June 25, 2003, July 21, 2003, September 4, 2003, September 23, 2003, December 22, 2003, and February 10, 2004.

 

(3)               All on-site storm drains were not protected against sedimentation by appropriate and acceptable methods, as documented during inspections conducted on August 1, 2001, August 16, 2002, September 17, 2002, January 31, 2003, June 25, 2003, July 21, 2003, September 4, 2003, September 23, 2003, October 8, 2003, and December 22, 2003.

 

6.                  Pursuant to 327 IAC 15-5-7(c), during the period of construction activity at the site all erosion control measures necessary to meet the requirements of 327 IAC 15-5-7 shall be maintained by the operator.

The Respondent failed to maintain the necessary erosion control measures at the Site as observed during inspections conducted on August 1, 2001, April 29, 2002, August 16, 2002, September 17, 2002, May 16, 2003, June 25, 2003, July 21, 2003, in violation of 327 IAC 15-5-7(c).

 

7.                  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 sections 1 and 3 of this chapter.

The Respondent caused or contributed to a polluted condition of waters of the state by causing the discharge of sediment from the Site into waters of Indiana as noted during the inspections conducted on August 1, 2001, April 29, 2002, August 16, 2002, June 25, 2003, July 21, 2003, September 4, 2003, September 23, 2003, and December 22, 2003, in violation of IC 13-18-4-5.

 

8.                  Subsequent to the Respondent's receipt of the Notice of Violation referred to herein, Dearborn County SWCD staff conducted inspections at the Site on April 30, 2004, June 1, 2004, and June 22, 2004, during which none of the areas of construction site management for erosion and sediment control were evaluated as unsatisfactory.  The Respondent completed development and construction activities at the Site during the Fall of 2004 and implemented necessary erosion control measures, including but not limited to installation of erosion control matting and seeding/sodding of disturbed areas, and submitted a Notice of Termination ("NOT") for the Site.  However, due to weather conditions, vegetation could not be established in all disturbed areas prior to the end of the 2004 growing season, therefore Respondent's NOT was rejected.  Respondent resubmitted the NOT on April 1, 2005, and the NOT was accepted by the Dearborn County SWCD on April 28, 2005.

 

9.                  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 the applicable provisions of 327 IAC 5-5-7, and IC 13-18-4-5.

 

3.                  The Respondent is assessed a civil penalty of Fifteen Thousand Dollars ($15,000).  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.

 

4.                  Civil penalty is payable by check to the Environmental Management Special Fund.  Payments shall include the Case Number (2004-13708-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., IN  46204-2251

 

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, 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.

 

6.                  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.

 

7.                  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.

 

8.                  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.

 

9.                  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.

 

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.

 

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

 

 

The remainder of this page intentionally left blank.

 

 

TECHNICAL RECOMMENDATION:

 

RESPONDENT:

 

Department of Environmental Management

 

The Drees Company

 

 

 

By:

 

 

By:

 

 

 

Mark W. Stanifer, Chief

 

Printed:

 

 

 

Water Enforcement Section

 

Title:

 

 

 

Office of Enforcement

 

 

 

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

COUNSEL FOR COMPLAINANT:

 

COUNSEL FOR RESPONDENT:

 

Department of Environmental Management

 

 

 

 

 

By:

 

 

By:

 

 

Joseph H. Merrick, Attorney

 

 

 

Office of Legal Counsel

 

 

 

The 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 24, 2005

 

 

Matthew T. Klein

 

 

Assistant Commissioner

 

 

of Compliance and Enforcement