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. 2004-13920-W
					)
wHITE’S CREATIVE LANDSCAPING, 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 IC 13-13-1-1.

2. The Respondent is White’s Creative Landscaping, Inc., (the “Respondent”), which owns the sanitary sewer construction project at Wildwood Estates Subdivision (the “Site”). The Site is located at Eldridge Road, ½ mile southeast of Feree Road, in Terre Haute, Vigo 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, on September 13, 2004, IDEM issued a Notice of Violation via Certified Mail to the Respondent at the address below:

Edward White, President and Registered Agent

White’s Creative Landscaping, Inc.

672 Springhill Road

Terre Haute, Indiana 47802

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 or about July 2003, the Respondent commenced construction of a sanitary sewer project for eight 2-bedroom apartments and three single-family homes at the Site.

8. On January 26, 2004, a representative of IDEM’s Facility Construction Section, Office of Water Quality (OWQ), received a construction permit application from the Respondent for the sanitary sewer project at the Site. The construction permit application included design flow with a total average flow of 3,850 gallons per day to the sanitary sewer and wastewater treatment plant owned and operated by the Terre Haute Sanitary Sewer District.

9. On February 11, 2004, IDEM’s representative sent a notice of deficiency (NOD) letter to the Respondent for failure to submit a complete construction permit application including details of the sewer manhole and sewer bedding, specifications of pipe materials, installation and testing of the sewer, capacity certification/allocation letter from the receiving WWTP, a new certification from the registered professional engineer or land surveyor who designed, stamped and submitted the plans, and submit sewer testing results.

10. On March 1, 2004, the Respondent submitted the information that was required by the February 11, 2004 NOD letter.

11. On March 15, 2004, a representative of IDEM sent the Plans and Specifications Review "As-Built" letter notifying the Respondent that a Construction Permit could not be issued for the sanitary sewer project at the Site because the construction had started prior to issuance of the permit. However a cursory review of the plans and specifications by IDEM indicated that they appeared to be acceptable and IDEM had no objection to the use of the sewers provided that the Respondent maintains compliance with 327 IAC 3-6-9.

12. The Respondent commenced construction of the sanitary sewer project for the Site prior to obtaining a construction permit, in violation of 327 IAC 3-2-1 and 327 IAC 3-2-2(d).

13. 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 all requirements of 327 IAC 3, and all other applicable rules and statutes.

3. The Respondent is assessed a civil penalty of Two Thousand, Two Hundred Dollars ($2,200). 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 2004-13920-W, of this action and shall be mailed to:

Cashier

IDEM

100 N. Senate Avenue

P. O. Box 7060

Indianapolis, IN 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 their 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.

TECHNICAL RECOMMENDATION:				RESPONDENT:
Department of Environmental Management				White’s Creative Landscaping, Inc.
By:	______________________________			By:		______________________________
	Mark W. Stanifer, Chief			Printed:		Edward White
	Water Enforcement Section			Title:		President and Registered Agent
	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
Date:		______________________________	Date:		______________________________

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS ______ DAY OF ______________, 2004.

For the Commissioner:

Signed 11/15/04

Felicia A. Robinson

Deputy Commissioner

for Legal Affairs