STATE OF INDIANA

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SS:

BEFORE THE INDIANA DEPARTMENT OF

 

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COUNTY OF MARION

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ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT

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OF ENVIRONMENTAL MANAGEMENT,

 

)

 

 

 

)

 

Complainant,

 

)

 

 

 

)

 

 

v.

 

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Case No. 2004-13994-W

 

 

)

 

Valley oaks, llc,

 

)

 

 

 

)

 

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.  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.  The 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.               The Respondent is Valley Oaks, LLC (“Respondent”), who owns and operates the sanitary sewer construction project at Valley Oak Estates Subdivision, (the “Site”).  The Site is located on the south side of East 129th Avenue, in Crown Point, Lake County, Indiana.  While the Notice of Violation issued for this case indicated that Trinity Corporation was the responsible party, during subsequent settlement discussions and documentation submitted by William Putz, on behalf of Valley Oaks, LLC, it was determined that Valley Oaks, LLC is the developer of the Site and is the responsible party.

 

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:

 

William M. Putz, President and Registered Agent

Trinity Corporation

Valley Oak Estates Subdivision

285 W. 80th Place

Merrillville, Indiana 46410

 

5.                  The Respondent waives the issuance of a Notice of Violation and to the settlement period of sixty days, as provided for by IC 13-30-3-3.

 

6.                  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.

 

7.                  Pursuant to 327 IAC 3-2-2(d), construction shall not commence until all necessary state approvals and permits are obtained.

 

8.                  On or about November 2003, the Respondent commenced construction of a sanitary sewer project for six single-family homes at the Site.  The scope of the project included the installation of approximately 1,320 feet of 10-inch diameter pipe and five manholes, which connected to the Crown Point sanitary sewer system and wastewater treatment plant.

 

9.                  On July 8, 2004, a representative of IDEM conducted a record review that indicated the Respondent has not submitted a construction permit application with as-built plans and specifications for the sanitary sewer construction project at the Site.

 

10.             On November 17, 2004, IDEM’s representative 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.  IDEM had no objection to the use of the sewers provided that all sewer-to-water main separation distances must comply with 327 IAC 3-6-9 separation of collection systems from water mains and drinking water wells.

 

11.             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).

 

12.             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, Five Hundred Dollars ($2,500).  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.                  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.  The Respondent’s liability for interest due shall be joint and several.

 

5.                  The Civil penalty is payable by check to the Environmental Management Special Fund.  Payments shall include the Case Number 2004-13921-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

 

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

 

Valley Oak, LLC

 

 

 

By:

_____________________________

 

Printed

_____________________

 

Mark W. Stanifer, Chief

 

 

William M. Putz, President

 

Water Enforcement Section

 

 

Valley Oaks, LLC

 

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

__4th_____

DAY OF

_January__________

, 200

6

.

 

 

 

For The Commissioner:

 

 

 

_Signed 1/4/06____

 

Matthew T. Klein

 

Assistant Commissioner

 

Compliance and Enforcement