STATE OF INDIANA	)		BEFORE THE INDIANA DEPARTMENT
	)	SS:	OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION	)
COMMISSIONER OF THE DEPARTMENT				)
OF ENVIRONMENTAL MANAGEMENT,				)
				)
Complainant,				)
				)
v.				)	CASE NO. 2005-14833-W
				)
GRIMMER CONSTRUCTION, INC,				)
				)
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 Indiana Code (“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 Indiana Code (“IC”) 13-13-1-1.

2. The Respondent is Grimmer Construction, Inc. (“Respondent”), which owns and/or operates a construction company, which installed a lift station under contract with the City of Portage, Indiana. The lift station construction site is located at 2516 Samuelson Road, in Portage, Porter County, Indiana (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 a Notice of Violation via Certified Mail to:

Gregory G. Grimmer, Sr., President	Gregory Grimmer, Registered Agent
Grimmer Construction, Inc.	Grimmer Construction, Inc.
2619 Main Street	3651 Boulevard Drive
Highland, Indiana 46322	Highland, Indiana 46322

5. Pursuant to 327 Indiana Administrative Code (“IAC”) 5-2-2, any discharge of pollutants into water 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 National Pollutant Discharge Elimination System (“NPDES”) permit obtained prior to discharge.

6. On March 11, 2004, a representative of IDEM conducted an investigation of a spill of silt and sediment from the Site, through a drainage ditch, into Willow Creek, which flows into Robbins Pond. The Respondent failed to obtain a valid NPDES permit prior to discharging the silt and sediment laden water into a drainage ditch, into Willow Creek, which flows into Robbins Pond, all of which are waters of the state, in violation of 327 IAC 5-2-2.

7. Pursuant to 327 IAC 2-1.5-8(b)(1), all waters within the Great Lakes system 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 that do any of the following:

a. Will settle to form putrescent or otherwise objectionable deposits.

b. Are in amounts sufficient to be unsightly or deleterious.

c. Produce color, visible oil sheen, odor, or other conditions in such degree as to create a nuisance.

d. 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.

e. Are in amounts sufficient to be acutely toxic to, or to otherwise severely injure or kill aquatic life, other animals, plants or humans.

8. The Respondent allowed a spill of silt and sediment through a drainage ditch, a water of the state in the Great Lakes System, in a manner that caused settling to form putrescent or otherwise objectionable deposits, in amounts sufficient to be unsightly or deleterious, in concentrations or combinations that caused or contributed to the growth of aquatic plants or algae to such degree as to create a nuisance, be unsightly, or otherwise impair the designated uses, in violation of 327 IAC 2-1.5-8(b)(1).

9. Pursuant to IC 13-30-2-1(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 which would violate rules, standards, or discharge or emission requirements adopted by the appropriate board under the environmental management laws.

10. The Respondent caused and/or allowed the discharge of silt and sediment from the Site, which is a contaminant or waste, into the environment from the Site on or about March 11, 2004, in violation of 327 IAC 2-6.1-7 and 327 IAC 2-1.5-8(b)(1), and thus violating IC 13-30-2-1(1).

11. 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.

12. On March 11, 2004, during IDEM's spill investigation at the Site, it was noted that very milky white water was heavily laden with silt and sediment, and had been pumped (using a blue flex-line pump) directly into the ditch. It was observed that the Respondent was discharging a silt and sediment laden water into a drainage ditch to Willow Creek and Robbins Pond, which caused or contributed to the contamination of the waters of the state, in violation of 327 IAC 2-6.1-7 and 327 IAC 2-1.5-8(b)(1), and thus violating IC 13-18-4-5.

13. On March 12, 2004, after the Respondent was notified of the violation on March 11, 2004, it ceased discharge of the milky white water laden with silt and sediment.

14. On March 19, 2004, the clean up of the milky white water laden with silt and sediment was complete. Since on or about March 19, 2004, the Respondent has complied with the provisions of 327 IAC 5-2-2, 327 IAC 2-6.1-7, and 327 IAC 2-1.5-8(b)(1), IC 13-30-2-1(1) and IC 13-18-4-5..

15. 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. Upon the Effective Date, the Respondent shall maintain compliance with point source discharge requirements of 327 IAC 5-2-2, spill reporting requirements of 327 IAC 2-6.1-7, and maintain erosion and sediment control measures to prevent water quality violations, as required by 327 IAC 5-2-2, 327 IAC 2-6.1-7, and 327 IAC 2-1.5-8(b)(1), IC 13-30-2-1(1) and IC 13-18-4-5.

3. Within 30 days of the Effective Date, the Respondent shall develop and submit to IDEM, at the address in Order Paragraph 5 below, a Spill Response Plan (“SRP”) for future construction sites. Attachment “A” of this Agreed Order outlines the elements that need to be included in a SRP.

4. Within 30 days of the Effective Date, the Respondent shall certify that employees are trained to implement best business practices, including but not limited to proper implementation of erosion control measures, to assure future protection of water quality in accordance with 327 IAC 2-1.5-8(b)(1); and all applicable rules and statutes.

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

Aletha Lenahan, Enforcement Case Manager

Indiana Department of Environmental Management

Office of Enforcement – Mail Code 60-02

100 North Senate Avenue

Indianapolis, Indiana 46204-2251

6. 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.

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

Order Paragraph:	Violation:	Stipulated Penalty:
3	Failure to submit SRP within the required time period.	$500 per week late, or part thereof.
4	Timely certify that employees, as required.	$500 per week late, or part thereof.

8. 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.

9. Civil and stipulated penalties are payable by check to the Environmental Management Special Fund. Checks shall include the Case Number 2005-14833-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, Indiana 46204-2251

10. In the event that the civil penalty required by Order Paragraph 6 is not paid within thirty 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.

11. 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 general stormwater permit, federal or state law.

12. 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.

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 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.

15. This Agreed Order shall remain in effect until the Respondent has complied with Order Paragraphs 3 through 10 of this Agreed Order and IDEM has issued a close-out letter to the Respondent.

TECHNICAL RECOMMENDATION:						RESPONDENT
Department of Environmental Management						Grimmer Construction, Inc.
By:	____________________					By:	_______________
	Mark W. Stanifer
	Section Chief, Water Section					Printed:	Gregory G. Grimmer, Sr.
	Office of Enforcement
						Title:	President____________
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		__24^th	DAY OF		___ April _________			, 20____.
				For the Commissioner:
				Signed by: Matthew T. Klein
				Matthew T. Klein
				Assistant Commissioner for
				Compliance & Enforcement

ATTACHMENT A

A Spill Response Plan will include, but not be limited to, the following:

1. The names and telephone numbers of persons who are identified by the Respondent as responsible for implementing the Spill Response Plan.

2. Identification of areas where potential spills can occur and their accompanying drainage points.

3. Procedures to be followed in the event of a spill, including the following:

A. Actions to contain or manage any type of spill.

B. Identification of the proper authorities to be contacted.

C. Mitigation of any adverse effects of the spill.

4. Identification of equipment and clean-up materials to be used in the event of a spill.

5. Procedures for reporting the spill to:

A. Any applicable local emergency or health authorities; and

B. IDEM, in accordance with 327 IAC 2-6.1.