STATE OF INDIANA

COUNTY OF MARION

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BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v.

NORTHWEST HAMILTON LAKE DEVELOPMENT COMPANY, LLC,

Respondent.

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Case No. 2004-14322-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.

 

I.  FINDINGS OF FACT

 

1.         Complainant is the Commissioner (hereinafter referred to as 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 Northwest Hamilton Lake Development Company, LLC (Respondent), which owns and operates a real estate development company, having its main business office located at 5215 North State Road 9, Columbia City, Indiana.  The Respondent is developing residential subdivisions known as Crystal Bay (also known as Phase I) and Crystal Cove (also known as Phase II), located at the east side of C.R. 300 E., south of Lane 280, in Hamilton, Steuben County, Indiana (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, February 3, 2006 IDEM issued a Notice of Violation via Certified Mail to:

 

Mr. Thomas Flegal

Mr. Kent Miller

Project Site Owner

Registered Agent

Northwest Hamilton Lake Dev. Co., LLC

Northwest Hamilton Lake Dev. Co., LLC

6340 South 300 East

5215 N State Road 9

Hamilton, IN  46742

Columbia City, IN 46725

 

5.         Pursuant to 327 IAC 15-2-5(a), any person subject to the requirements of 327 IAC 15 shall submit a notice of intent (NOI) letter that complies with 327 IAC 15-2-5, 327 IAC 15-3, and the additional requirements in the applicable permit rule.

 

6.         Pursuant to 327 IAC 15-5-6, all information required under 327 IAC 15-3 and 327 IAC 15-5-5, specifically a Notice of Intent (NOI) letter and all related information, shall be submitted to the commissioner prior to the initiation of land disturbing activities.  Respondent failed to submit a NOI letter for Crystal Cove prior to initiating land disturbing activities at the Site on or about December 2002 in violation of 327 IAC 15-5-6 and 327 IAC 15-2-5(a).

 

7.         Pursuant to 327 IAC 15-5-7(a), the operator shall develop an erosion control plan (also known as an erosion and sediment control plan or ESCP) in accordance with the requirements of 327 IAC 15-5-7.  The ESCP must assure that erosion control measures are implemented and maintained, and that off-site sedimentation does not occur during the period of construction activity at a site.

 

8.         Pursuant to 327 IAC 15-5-7(d), all erosion control measures required to comply with this rule shall meet the design criteria, standards, and specifications for erosion control established by the department in guidance documents similar to, or as effective as, those outlined in the Indiana Stormwater Quality Manual from the Indiana Department of Natural Resources (IDNR) Division of Soil Conservation (DSC), and the Field Office Technical Guide from the Natural Resources Conservation Service.

 

9.         Pursuant to 327 IAC 15-5-5(4), the NOI letter must include a written certification by the operator that the erosion control measures in the ESCP comply with 327 IAC 15-5-7 and applicable state, county, or local erosion control authority and the soil and water conservation district office have been sent a copy for review.

 

10.       Respondent failed to submit a ESCP for Crystal Cove to IDNR or to the Steuben County SWCD prior to initiating land disturbing activities on or about December 2002 in violation of 327 IAC 15-5-7(a) and (d), 327 IAC 15-5-5(4), and 327 IAC 15-5-6.

 

11.       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:

 

a.      Sediment-laden water shall be detained on site by erosion control practices that minimize sedimentation in the receiving stream.

b.      Appropriate measures shall be taken to minimize or eliminate wastes or unused building materials from being carried from the site by run-off.

c.      Sediment tracked from the site onto public or private roadways shall be minimized.

d.      Public and private roadways shall be kept clear of accumulated sediment.

e.      All on-site storm drains shall be protected against sedimentation by appropriate and acceptable methods.

f.        Storm water drainage from adjacent areas that naturally passes 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.

g.      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.

 

12.       As documented during site inspections at Crystal Bay and/or Crystal Cove conducted on December 9, 2003,  January 15 and 16, 2004, February 25, 2004, April 12, 2004 and May 11, 2004 the Respondent has failed to meet the requirements of 327 IAC 15-5-7(b) and thus has violated 327 IAC 15-5-7.

 

13.             Pursuant to 327 IAC 2-1-6(a), all waters at all times and at all places, 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;

d.      which are in amounts sufficient to be acutely toxic to, or to otherwise severely injure or kill aquatic life, other animals, plants, or humans; and

e.      which are in concentrations or combinations that will cause or contribute to the growth of aquatic plants or algae to such degree as to create a nuisance, be unsightly, or otherwise impair the designated uses.

 

14.       Pursuant to Indiana Code (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 IC 13-18-4-1 and IC 13-18-4-3.

 

15.       Pursuant to IC 13-30-2-1, no person may discharge, emit, cause, allow, or threaten to discharge, emit, cause, or allow any contaminant or waste, including any noxious odor, either alone or in combination with contaminants from other sources, into the environment or into any publicly owned treatment works in any form which causes or would cause pollution which violates or would violate rules, standards, or discharge or emission requirements adopted by the appropriate board pursuant to IC 13.

 

16.       Site inspections conducted by representatives of IDNR during the period of construction activity and/or active land disturbing activity, revealed that the Respondent caused or allowed the discharge of sediment into Hamilton Lake and adjoining wetlands areas, waters of the state, that settled to form objectionable deposits and/or in an amount sufficient to be unsightly or deleterious, in a manner that caused a polluted condition, in violation of 327 IAC 2-1-6(a), IC 13-18-4-5, and IC 13-30-2-1.

 

17.             All references to 327 IAC 15-5 and its subparts in Paragraphs 5, 6, 7, 8, and 9 are to the version that was in effect prior to the rule change effective November 26, 2003. The reference to 327 IAC 15-5-7(b) in Paragraph 11 is to the version after the rule change effective November 26, 2003.

 

18.       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 15-2, 327 IAC 15-4, 327 IAC 15-3, 327 IAC 15-5, 327 IAC 2-1-6(a), IC 13-18-4-5, and IC 13-30-2-1.

 

3.                  For the purposes of this Agreed Order, a “construction plan” (CP) is defined as a representation of a project site and all activities associated with the project.  The plan includes the location of the project site, buildings and other infrastructure, grading activities, schedules for implementation, and other pertinent information related to the project site.  A storm water pollution prevention plan (SWPPP) is a part of the construction plan, pursuant to 327 IAC 15-5-4(5) and 327 IAC 15-5-4 (35) [rules effective October 27, 2003].

 

4.                  The Respondent shall, immediately upon the Effective Date, implement the erosion and sediment control measures contained in the approved CP for the Site and any other erosion and sediment control measures necessary to:

 

a.         Ensure compliance with the requirements of 327 IAC 15-5-7 and 327 IAC 2-1-6(a)(1); and

b.         prevent sediment from leaving the site and entering or threatening to enter  waters of the state.

 

This effort should include basin outlets identified in the on-site evaluations in accordance with the CP and the methods outlined in the Indiana Stormwater Quality Manual.  These measures shall be adequate in size and location to control the area of run-off and to prevent off-site sedimentation. Respondent will be deemed to have satisfied the requirements of this paragraph when IDEM or the local SWCD verifies that adequate vegetative cover has been established  and/or that appropriate erosion control measures have been put into place, and Respondent has no “unsatisfactory” ratings in inspections from IDEM or the local 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 Respondent 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.

 

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 Respondent 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 Respondent 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 Respondent shall make the records required pursuant to Order Paragraph 7 above available for inspection and copying by representatives of IDEM, and the SWCD.

 

9.                  The Respondent 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 Respondent 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 4, 5, 6, 7, 8, and 9 above shall remain in effect until the earlier of :

 

a.         Respondent submits 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,

 

and a designated representative of IDEM approves the adequacy of the remaining permanent erosion control measures in accordance with 327 IAC 15-5-8(b).

 

12.              All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:

 

Christina Sorensen, Enforcement Case Manager

Water Enforcement Section

Office of Enforcement, Mail Code 60-02

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

13.              The Respondent is assessed a civil penalty of Forty-Four Thousand Four Hundred Dollars ($44,400).  Said civil penalty amount shall be due and payable to the Environmental Management Special Fund within 180 days of the Effective Date.

 

14.              In the event the terms and conditions of the following paragraphs are violated, the Complainant may assess and the Respondent shall pay a stipulated penalty in the following amount:

 

Order Paragraph

Violation

Penalty

Paragraph 4

Failure to implement the erosion and sediment control measures contained in the approved CP and any other erosion and sediment control measures necessary to comply with the requirements of Paragraph 4a and 4b.

$500 per violation

Paragraph 5

Failure to inspect the Site as required

$500 per violation

Paragraph 6

Failure to immediately take all actions necessary to correct deficiencies found during Site inspections

$500 per violation

Paragraph 7

Failure to maintain records as required

$500 per violation

Paragraph 8

Failure to maintain required records at the Site, or failure to make required records available to IDEM and SWCD

$500 per violation

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

 

15.              Stipulated penalties shall be due and payable within 30 days after the Respondent receives written notice that the Complainant has determined a stipulated penalty is due.  Assessment and payment of stipulated penalties shall not preclude the Complainant from seeking any additional relief against the Respondent 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 Respondent's violation of this Agreed Order or Indiana law, including, but not limited to, civil penalties pursuant to IC 13-30-4.

 

16.              Civil and stipulated penalties are payable by check to the Environmental Management Special Fund.  Payments shall include the Case Number (2004-14322-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

 

17.              In the event that the civil penalty required by Order Paragraph 13, is not paid within 30 days of the Effective Date, 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.

 

18.              This Agreed Order fully resolves all violations identified in the Notice of Violation issued on February 3, 2006, any violations noted in the inspection reports leading to the issuance of the Notice of Violation that could have been included in the Notice of Violation, and Rule 5 violations discovered in subsequent inspections on or before the date of entry of this Agreed Order.

 

19.              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.

 

20.              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.

 

21.              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.

 

22.              The Respondent shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights are transferred.  Respondent shall ensure that all contractors, firms and other persons performing work under this Agreed Order comply with the terms of this Agreed Order.

 

23.              This Agreed Order is not and shall not be interpreted to be a permit or a modification of an existing permit.  This Agreed Order, and IDEM’s review or approval of any submittal made by the Respondent pursuant to this Agreed Order, shall not in any way relieve the Respondent of its obligation to comply with the requirements of any applicable permit or order or with any other applicable federal or state law or regulation.

 

24.              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 any permit or order or any applicable federal or state law or regulation.  Additionally, IDEM or anyone acting on its behalf shall not be held liable for any costs or penalties the Respondent may incur as a result of Respondent’s efforts to comply with this Agreed Order.

 

25.              Nothing in this Agreed Order shall prevent or limit IDEM’s rights to obtain penalties or injunctive relief under any applicable federal or state law or regulation, except that IDEM may not seek additional civil penalties for the violations specified in the Notice of Violation.

 

26.              Nothing in this Agreed Order shall prevent IDEM or anyone acting on its behalf from communicating with the United States Environmental Protection Agency (EPA) or any other agency or entity about any matters relating to this enforcement action.  IDEM or anyone acting on its behalf shall not be held liable for any costs or penalties the Respondent may incur as a result of such communications with the EPA or any other agency or entity.

 

27.              This Agreed Order shall remain in effect until the Respondent has complied with Order Paragraphs 4 through 17 of this Agreed Order and IDEM has issued a close-out letter to the Respondent.

 

 

TECHNICAL RECOMMENDATION:

 

RESPONDENT:

Department of Environmental Management

 

Northwest Hamilton Lake Dev. Co., LLC

 

 

 

By:

 

 

By:

 

 

Mark W. Stanifer

 

Printed:

 

 

Section Chief, Water Section

 

Title:

 

 

Office of Enforcement

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

 

 

 

COUNSEL FOR COMPLAINANT:

 

COUNSEL FOR RESPONDENT:

For the Department of Environmental Management

 

 

 

 

 

By:

 

 

By:

 

 

 

 

 

 

 

Deputy Attorney General

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

 

DAY OF

 

, 2007.

 

 

For The Commissioner:

 

 

 

Signed on July 23, 2007

 

Robert B. Keene

 

Assistant Commissioner

 

Office of Legal Counsel and Enforcement