|
STATE OF |
) |
|
BEFORE THE INDIANA DEPARTMENT |
||
|
|
|||||
|
COMMISSIONER OF THE DEPARTMENT Complainant, v. NORTHWEST HAMILTON LAKE DEVELOPMENT COMPANY, 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.
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
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
3. The
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 |
|
|
|
|
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 |
|
|
|
|
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 |
|
|
|
|
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 |
||||||