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BEFORE THE INDIANA DEPARTMENT |
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COMMISSIONER OF THE DEPARTMENT Complainant, v. JIM INGLEDUE CONSTRUCTION, INC Respondent. |
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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 Jim Ingledue Construction, Inc., (Respondent),
which owns and operates a construction company, having its main business office
located at
3. The
4. Pursuant to IC 13-30-3-3, on March 21, 2006, IDEM issued a
Notice of Violation via Certified Mail to:
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Mr. Kenneth W. Wilson |
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President and Registered Agent |
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Jim Ingledue Construction, Inc. |
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5. An inspection on May 18, 2005 was conducted at the site by a
representative of IDEM’s Office of Water Quality (OWQ). The following violations were in existence or
observed at the time of this inspection:
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 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.
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.
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.
On May 18, 2005, a designated representative of the IDEM OWQ conducted an
inspection of the Site and documented the discharge of dredged or fill material
into areas of Jimmerson Lake, and wetland fill infringement affecting waters of
the state. Respondent discharged earthen
fill materials into waters of the state, in violation of 327 IAC 2-1-6(a), IC
13-18-4-5, and IC 13-30-2-1.
6. 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 comply with 327 IAC 2-1-6(a), IC
13-18-4-5, and IC 13-30-2-1.
3. The Respondent is assessed a civil penalty of Eight Thousand Five
Hundred Dollars ($8,500). 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.
4. Civil penalties are payable by check to the Environmental
Management Special Fund. Checks shall
include the Case Number 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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5. In the event that the civil penalty
required by Order Paragraph 3, is not paid within thirty (30) 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.
6. 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.
7.
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.
8.
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.
9.
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.
10.
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.
11.
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.
12.
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.
13.
This Agreed
Order shall remain in effect until the Respondent complies with the terms of
Order Paragraph Nos. 2 through 5 and IDEM issues a Close-Out letter to the
Respondent.
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TECHNICAL
RECOMMENDATION: |
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RESPONDENT: |
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Department
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Jim Ingledue Construction,
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By: |
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Mark W. Stanifer |
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Printed: |
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Section Chief, Water
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Office
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COUNSEL
FOR COMPLAINANT: |
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COUNSEL
FOR RESPONDENT: |
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Department
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Office
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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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2006. |
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For
The Commissioner: |
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Signed
on October 24, 2006 |
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Matthew
T. Klein |
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Assistant
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of
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