STATE OF
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BEFORE THE INDIANA DEPARTMENT
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OF ENVIRONMENTAL
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COMMISSIONER OF THE
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OF ENVIRONMENTAL
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Complainant, |
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Case No.
2004-14112-W |
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WAYNE WILLIS
and GARY SORGE, and |
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J. P. SILVERTON INDUSTRIES LIMITED |
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PARTNERSHIP, |
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Respondent. |
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The Complainant and the Respondents
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.
1.
The Complainant is the Commissioner
(“Complainant”) of the Indiana Department of Environmental Management, a department
of the State of
2.
Respondents are Wayne Willis, Gary Sorge, and J.
P. Silverton Industries Limited Partnership ("Respondents"). Wayne Willis and Gary Sorge are the operators
of a development referred to as the Willis/Sorge State Line Road Property,
located west of
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 August 20, 2004,
IDEM issued a Notice of Violation via Certified Mail to:
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Wayne Willis |
Gary Sorge |
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J. P. Silverton Industries Limited
Partnership |
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5.
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:
(i)
Sediment-laden water shall be detained on-site by
erosion control practices that minimize sedimentation in the receiving stream.
(ii)
Appropriate measures shall be taken to minimize
or eliminate wastes or unused building materials being carried from the site by
run-off.
(iii)
Sediment tracked from the site onto public or
private roadways shall be minimized.
(iv)
Public and private roadways shall be kept clear
of accumulated sediment.
(v)
All on-site storm drains shall be protected
against sedimentation by appropriate and acceptable methods.
(vi)
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.
(vii)
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.
6.
Pursuant to 327 IAC 15-5-7(c), during the period
of construction at the site, all erosion control measures necessary to meet the
requirements of this rule shall be maintained by the operator.
7.
Based on site visits and inspections conducted
by IDNR, the Respondents failed to assure that erosion control measures were
implemented and maintained at the Site from October of 2002 to June of 2004,
and failed to assure that off-site sedimentation did not occur during the
period of construction activity during October of 2002 and from August of 2003
through June of 2004. Specifically, it
was observed that:
A.
Sediment-laden water was not detained on the 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 October 8, 2002, November 7, 2002, July 16, 2003,
August 12, 2003, September 19, 2003, November 19, 2003, December 12, 2003, February
11, 2004, March 15, 2004, April 30, 2004, June 1, 2004, and June 22, 2004, in
violation of 327 IAC 15-5-7(b).
B.
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 observed during inspections conducted on September
17, 2002, and December 12, 2003, in violation of 327 IAC 15-5-7(b).
C.
The necessary erosion control measures were not maintained
at the Site, as observed during inspections conducted on August 4, 2003,
September 30, 2003, October 31, 2003, December 3, 2003, March 15, 2004, April
30, 2004, June 1, 2004, and June 22, 2004, in violation of 327 IAC 15-5-7(c).
8.
Pursuant to 327 IAC 5-2-2, any discharge of pollutants into
waters of the State as a point source discharge, except for exclusions made in
327 IAC 5-2-4, is prohibited unless in conformity with a valid NPDES permit
obtained prior to the discharge.
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 Respondents 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 October 8, 2002, August 12, 2003, September 19, 2003, November 19, 2003,
December 12, 2003, February 11, 2004, April 30, 2004, June 1, 2004, and June
22, 2004, in violation of 327 IAC 5-2-2 and IC 13-18-4-5.
9.
Pursuant to 327 IAC 2-1-6(a), all waters at all times and at
all places, including the mixing zone, 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:
(A)
that will settle to form putrescent or otherwise
objectionable deposits;
(B)
that are in amounts sufficient to be unsightly or
deleterious;
(C)
that produce color, visible oil sheen, odor, or other
conditions in such degree as to create a nuisance.
The Respondents caused or contributed to
the discharge of sediment to waters of the state which resulted in: (A) objectionable deposits of sediment; (B)
unsightly suspended solids; and (C) a color in the waters in such degree as to
create a nuisance, as noted during the inspections conducted on August 12,
2003, September 19, 2003, November 19, 2003, April 30, 2004, June 1, 2004, and
June 22, 2004, in violation of 327 IAC 2-1-6(a).
10.
On December 17, 2004, the Respondents submitted an
addition to their Construction/ Stormwater Pollution Prevention Plan for the
location along
11.
On March 28, 2005, Dearborn County SWCD staff
conducted an inspection at the Site and observed, among other things, that the
rock check in the over-flow channels was built incorrectly, sediment was
flowing out of the rock check in the overflow channels, the filter stone on the
sediment trap was incorrectly sized, and the creek bank was eroding. The following areas of construction site
management for erosion and sediment control were evaluated as
unsatisfactory: perimeter sediment
control measures; sediment control measures for the conveyance channels;
installation of erosion and sediment control measures; and the stabilization of
outlets. It was observed that sediment
was flowing into Double Lick Creek from the creek bank and the overflow
channels.
12.
On May 25, 2005, Dearborn County SWCD staff
conducted an inspection at the Site and observed, among other things, that the
rock check in the over-flow channels was built incorrectly, sediment was
flowing out of the rock check in the overflow channels, the filter stone on the
sediment trap was incorrectly sized, the top of the hill remained bare, the
sediment trap was full, and gullies had formed from the bare hillside to the
sediment trap. The following areas of
construction site management for erosion and sediment control were evaluated as
unsatisfactory: perimeter sediment
control measures; installation of erosion and sediment control measures; and
the stabilization of outlets.
13.
On October 25, 2005, Dearborn County SWCD staff
conducted an inspection at the Site and observed, among other things, that the
rock check dam was not installed according to specifications and areas of bare
or thinly vegetated areas needed seeded, fertilized, and or mulch. The following areas of construction site
management for erosion and sediment control were evaluated as unsatisfactory: installation of erosion and sediment control
measures; and maintenance of existing erosion and sediment control measures.
14.
In recognition of the settlement reached, the
Respondents waive 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
Respondents. This Agreed Order shall
have no force or effect until the Effective Date.
2.
The Respondents shall maintain compliance with the applicable
provisions of 327 IAC 5-5-7, 327 IAC 5-2-2, IC 13-18-4-5, and 327 IAC 2-1-6(a).
3.
The Respondents shall, immediately upon the Effective Date,
implement the erosion and sediment control measures applicable to the existing
development contained in the existing Erosion and Sediment Control Plan (ESCP),
including the additions to the ESCP approved on January 5, 2005, the necessary
erosion control measures referenced in the March 28, 2005, April 29, 2005, and
May 25, 2005 inspection reports, and/or subsequent additions or amendments to
the ESCP, and any other erosion and sediment control measures at the Site
necessary to:
a.
Ensure compliance with the requirements of 327 IAC 15-5-7;
and
b.
prevent sediment from leaving the site and entering or threatening
to enter waters of the state.
4.
The
Respondents shall comply with 327 IAC 15-5-7 and 327 IAC 2-1-6(a)(1) by
preventing sedimentation from entering the waters of the State from basin
outlets identified in the on-site evaluations in accordance with the ESCP and
the methods outlined in the Indiana
Handbook for Erosion Control in Developing Areas (now known as the Indiana Stormwater Quality Manual) from the IDNR, Division of Soil
Conservation. These measures shall be adequate
in size and location to control the area of run-off and to prevent off-site
sedimentation. Respondents will be deemed to have
satisfied the requirements of paragraphs 2, 3, and this paragraph when IDNR
verifies that adequate vegetative cover has been established and/or that appropriate erosion control
measures have been put into place, and Respondents have no “unsatisfactory”
ratings in inspections from IDNR or the Dearborn County SWCD for one year, or
until the project termination conditions of 327 IAC 15-5-8 have been met at the
site and a notice of termination (NOT) has been submitted and accepted.
5.
The
Respondents shall, upon the Effective Date, implement a self-monitoring program
as required by 327 IAC 15-5-7(18), including assuring that a trained individual
performs a written evaluation of the project site by the end of the next
business day following each measurable storm event; and at a minimum of one
time per week, in order to determine whether the erosion and sediment controls
are:
a.
properly installed and maintained; and
b.
adequate to ensure compliance with the requirements of 327
IAC 15-5-7 and to prevent sediment from leaving the site and entering or
threatening to enter waters of the state.
c.
For the purposes of this Agreed Order, a “measurable storm
event” is defined as a precipitation event that results in a total measured
precipitation accumulation equal to or greater than 0.5 inches of rainfall.
6.
In the event that deficiencies are found during the
inspections of the Site conducted pursuant to Order Paragraph 5 above, the
Respondents shall immediately take all actions necessary to correct the
deficiencies. Such actions may include,
but are not necessarily limited to, removal of accumulated sediment from behind
silt fences and storm inlets, assurance that conveyance channels and swales are
stabilized, and installation of additional erosion control measures if
determined necessary.
7.
The Respondents shall maintain records of the inspections
conducted pursuant to Order Paragraph 5 above and corrective actions taken
pursuant to Order Paragraph 6 above. The records shall include, but not
necessarily be limited to:
a.
the date and time of inspection;
b.
the weather conditions at the time of the inspection;
c.
the name of the individual conducting the inspection;
d.
a description of observations made during the inspection,
specifically including a description of any deficiencies that were found; and
e.
a description of the corrective actions taken as a result of
deficiencies found during the inspection.
8.
The Respondents shall maintain the records required pursuant
to Order Paragraph 7 above at the Site or at a suitable location near the Site,
and shall make such records available for inspection and copying by
representatives of IDEM, IDNR, and the Dearborn County SWCD.
9.
The Respondents shall, within 15 days of the Effective Date,
provide written notification to all parties with access to the Site, including
contractors and subcontractors, of the requirements contained in the approved
ESCP.
10.
The Respondents shall, within 30 days of the Effective Date,
submit to IDEM a copy of the notification required pursuant to Order Paragraph
9 above and a statement certifying that the notification was provided to all
parties with access to the Site.
11.
The requirements of Paragraphs 3, 4, 5, 6, 7, and 8 above
shall remain in effect until the earlier of:
a.
Respondents submit notification of termination of
construction activity pursuant to 327 IAC 15-5-11 for the Site, or
b.
one year has passed from the effective date of this Agreed
Order,
c.
and a representative of IDNR approves the adequacy of the
remaining permanent erosion control measures in accordance with 327 IAC
15-5-8(b).
12.
The Respondents are assessed a civil penalty of Sixteen
Thousand Dollars ($16,000). 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.
13.
In the event the terms and conditions of the following
paragraphs are violated, the Complainant may assess and the Respondents shall
pay a stipulated penalty in the following amount:
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Order
Paragraph |
Violation |
Penalty |
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Paragraph
3 |
Failure
to implement the erosion and sediment control measures contained in the approved
ESCP and any other erosion and sediment control measures necessary to comply
with the requirements of Paragraph 3a and 3b |
$500
per violation |
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Paragraph
4 |
Failure
to implement the erosion and sediment control measures contained in the approved
ESCP |
$500
per violation |
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Paragraph
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Failure
to inspect the Site as required |
$500
per violation |
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Paragraph
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Failure
to immediately take all actions necessary to correct deficiencies found
during Site inspections |
$500
per violation |
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Paragraph
7 |
Failure
to maintain records as required |
$500
per violation |
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Paragraph
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Failure
to maintain required records at the Site or at a suitable location near the
Site, or failure to make required records available to IDEM, IDNR, and the Dearborn
County SWCD |
$500
per violation |
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Paragraph 10 |
Failure
to timely submit certification statement and copy of notice provided pursuant
to Order Paragraph 9 |
$250
per week or part thereof late |
14.
Stipulated penalties shall be due and payable within 30 days
after the Respondents receive written notice that the Complainant has made
reasonable determination a stipulated penalty is due. Assessment and payment of stipulated
penalties shall not preclude the Complainant from seeking any additional relief
against the Respondents for violation of the Agreed Order. In lieu of any of the stipulated penalties
given above, the Complainant may seek any other remedies or sanctions available
by virtue of the Respondents’ violation of this Agreed Order or Indiana law,
including, but not limited to, civil penalties pursuant to IC 13-30-4.
15.
Civil and stipulated penalties are payable by check to the
Environmental Management Special Fund.
Payments shall include the Case Number (2004-14112-W) of this action and
shall be mailed to:
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Cashier |
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IDEM |
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Mail Code 50-10C |
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16.
In the event that the civil penalty required by Order Paragraph
12, is not paid within 30 days of the Effective Date of this Agreed Order, the
Respondents 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.
17.
This Agreed Order does not, in any way, relieve the
Respondents of its obligation to comply with the applicable requirements of
federal or state law or regulation.
18.
The Complainant does not, by its approval of this Agreed Order,
warrant or aver in any manner that the Respondents’ compliance with any aspect
of this Agreed Order will result in compliance with the applicable requirements
of federal or state law or regulation.
19.
This Agreed Order shall apply to and be binding upon the
Respondents, their successors and assigns.
The Respondents’ 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 Respondents shall in any way alter its
status or responsibilities under this Agreed Order.
20.
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.
21.
The Respondents shall provide a copy of this Agreed Order,
if in force, to any subsequent owners or successors before ownership rights are
transferred. Respondents shall ensure that all
contractors, firms and other persons performing work under this Agreed Order
comply with the terms of this Agreed Order.
22.
This Agreed Order shall remain in effect until the
Respondents have complied with Order Paragraphs 3 through 16 of this Agreed
Order and IDEM has issued a close-out letter to the Respondents.
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TECHNICAL RECOMMENDATION: |
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RESPONDENT: |
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Department of Environmental Management |
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Wayne Willis |
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Mark W. Stanifer, Chief |
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Water Enforcement Section |
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Office of Enforcement |
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Date: |
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Gary Sorge |
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Printed |
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Date: |
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J. P. Silverton Industries Limited |
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Partnership |
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Printed |
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Date: |
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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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Joseph Merrick, Attorney |
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Office of Legal Counsel |
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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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DAY OF |
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, 2005 |
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For The Commissioner: |
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Signed 11/21/05_ |
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Matthew T. Klein |
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Assistant Commissioner |
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Compliance and Enforcement |
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