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STATE OF |
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BEFORE THE INDIANA
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ENVIRONMENTAL MANAGEMENT |
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COMMISSIONER OF THE
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OF ENVIRONMENTAL
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Complainant, |
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v. |
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Case Nos.
2005-14611-W and |
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2005-14703-W |
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PULTE HOMES
OF INDIANA, LLC and |
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PLATINUM
PROPERTIES, LLC |
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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 the 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.
The Respondents are Pulte Homes of Indiana, LLC,
(“Respondent 1”, Case No. 2005-14611-W), who
is the home builder in Long Branch Estates, Section 3, a residential
subdivision located at Shelburne Road and East 116th Street, City of
Carmel, in Hamilton County, Indiana (“Site”) and Northside Investments, LLC,
dba, Platinum Properties, LLC, (“Respondent 2, Case No. 2005-14703-W), which
owns, operates and/or develops the 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, IDEM issued on August 25, 2005, a
Notice of Violation via Certified Mail to:
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Pulte
Homes of Indiana, LLC |
and
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CT
Corporation System Registered
Agent for Pulte Homes |
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Northside
Investments, LLC, dba Platinum
Properties, LLC 9551
Delegates Row |
and
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Platinum
Properties, LLC Registered Agent for Northside
Investments, LLC 9551
Delegates Row |
5.
All references in these Findings of Fact to 327
6.
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 under this
section. 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.
7.
Pursuant to 327 IAC 15-5-7(b), both before and after its
November 2003 revisions, 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.
Sediment tracked from the site onto public or private
roadways shall be minimized.
c.
Public and private roadways shall be kept clear of
accumulated sediment.
d.
All on-site storm drains shall be protected against
sedimentation by appropriate and acceptable methods.
e.
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.
f.
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.
8.
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.
9. As between the Respondents, Respondent
1 was responsible for compliance with the ESCP and the provisions of 327 IAC
15-5 and its various subparts with respect to active land disturbance involved
with the construction of a single family home on lots at the Site and
Respondent 2 was responsible for the ESCP and the provisions of 327 IAC 15-5
and its various subparts with respect to active land disturbance at the Site
that was not involved with the construction of a single family home on lots at
the Site.
10. Based on Site visits and
inspections conducted by Division of Soil Conservation representatives and/or
the Hamilton County SWCD on August 26, 2003, November 13, 2003, March 23, 2004,
April 26, 2004, and June 16, 2004, the Respondents, primarily Respondent 2,
failed to assure that erosion control measures were implemented and maintained
at the Site and to assure that off-site sedimentation did not occur during the
period of construction activity from August 26, 2003 to June, 16, 2004. Specifically, it was observed that Respondent
2 had failed to minimize sedimentation to a receiving stream, permitted
stormwater runoff from the Site that was causing erosion at point of discharge,
provided for inadequate inlet protection, and done so when the Site conditions
presented a high potential for off-site sedimentation, in violation of 327 IAC
15-5-7(b) and (c). It was also observed
that disturbed areas had not been adequately protected through seeding or other
appropriate erosion and sediment control measures in accordance with the ESCP,
runoff from disturbed areas had not been controlled by appropriate erosion
control measures, and erosion and sediment control measures had not been
adequately maintained, in violation of 327 IAC 15-5-7(b) and (c). Furthermore, it was observed that Respondent
1 had failed to keep sediment from entering the roadway and had failed to
prevent soil materials from being tracked onto public/private roadways, in
violation of 327 IAC 15-5-7(b) and (c).
11. 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 15-5.
3.
Immediately, upon the Effective Date, the Respondents shall
maintain the erosion and sediment control measures contained in the approved
ESCP 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
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 ESCP and the methods outlined in the Indiana Stormwater Quality Manual from
the 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 this paragraph when the
local SWCD 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 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 has been submitted and accepted.
4.
Upon
completion of the current construction project at the Site, as required by 327
IAC 15-5-8 and 327 IAC 15-5-11, the Respondents shall submit to IDEM, the
notice of termination, which states that the project is complete. The notice of termination shall be submitted
to the address below:
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Rule 5
Stormwater Coordinator |
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Wet
Weather Section |
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IDEM
Office of Water Quality – Mail Code 65-40 |
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5.
The Respondents are assessed a civil penalty of Twelve
Thousand Dollars ($12,000). 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.
6.
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 maintain 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 timely submit certification statement |
$250
per week or part thereof late |
7.
Stipulated penalties shall be due and payable within 30 days
after the Respondents receive 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 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.
8.
Civil and stipulated penalties are payable by check to the
Environmental Management Special Fund.
Payments shall include the Case Numbers (2005-14611-W and 2005-14703-W)
of this action and shall be mailed to:
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Indiana
Department of Environmental Management |
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Cashiers
Office – Mail Code 50-10C |
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9.
In the event that the civil penalty required by Order
Paragraph 5, 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.
10.
This Agreed Order does not, in any way, relieve the
Respondents of their obligation to comply with the applicable requirements of
federal or state law or regulation.
11.
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.
12.
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
their status or responsibilities under this Agreed Order.
13.
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.
14.
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.
15.
This Agreed Order shall remain in effect until the
Respondents have complied with Order Paragraphs 3 through 9 of this Agreed
Order and IDEM has issued a close-out letter to the Respondents.
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TECHNICAL RECOMMENDATION: |
RESPONDENT 1 |
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Department of Environmental Management |
Pulte Homes of Indiana, LLC |
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By: |
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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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COUNSEL FOR COMPLAINANT: |
COUNSEL FOR RESPONDENT 1: |
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By: |
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Jay Rodia, Attorney |
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Office of Legal Counsel |
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Date: |
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RESPONDENT 1 |
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Northside Investments, LLC, dba |
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Platinum Properties, LLC |
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By: |
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Printed: |
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Title: |
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COUNSEL FOR RESPONDENT 2: |
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By: |
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APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT THIS ______ DAY OF _________________________,
200__. |
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For the Commissioner: |
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(Signed December 9, 2005) |
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Matthew T. Klein |
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Assistant Commissioner |
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Compliance and Enforcement |
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