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BEFORE THE INDIANA DEPARTMENT |
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COMMISSIONER OF THE DEPARTMENT Complainant, v. BoWYER BROTHERS, llc, Respondent. |
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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 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.
1.
The Complainant is the Commissioner (“Complainant”) of the
Indiana Department of Environmental Management, a department of the State of
2.
The Respondent is Bowyer Brothers, LLC (“Respondent”), which
owns and operates the sanitary sewer construction project having its main
office located at 2653 S 400 W,
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, on March 21, 2006, IDEM issued a
Notice of Violation via Certified Mail to the Respondent at the address below:
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Mark
L. Bowyer, President and Registered Agent Bowyer
Brothers, LLC Bent
Creek Subdivision 2653
S 400 W |
5.
Pursuant to 327 IAC 3-2-1, no person shall cause or allow
the construction, installation, or modification of any water pollution
treatment/control facility or sanitary sewer, without a valid construction
permit issued by the commissioner.
6.
Pursuant to 327 IAC 3-2-2(d), construction shall not
commence until all necessary state approvals and permits are obtained.
7.
On October 13, 2004, IDEM received the construction permit
application for a sanitary gravity sewer and force main construction project to
serve 63 new three-bedroom condominiums, with an average flow of 19,530 gallons
per day. The original construction
permit application was submitted to IDEM approximately seven months prior to
the installation of the directionally bored force main.
8.
On November 16, 2004, and January 31, 2005, IDEM sent
notices of deficiency to the Respondent, which requested an alternate to the
Technical Standards for directional bore method of installation of portions of
the proposed force main, a revised Design Summary Form, and revised plan
drawings with correct information.
9.
On April 5, 2005, IDEM denied the construction permit application
and returned the submitted plans, specifications, and application to the
Respondent, based on the fact that IDEM did not receive the information
requested on November 16, 2004, and January 31, 2005.
10.
On or about May 23, 2005, the Respondent began
construction of the force main portion of the sanitary sewer at the Site. The scope of the project included the
installation of approximately 1,330 feet of 6-inch DDPE, ASTM F714, DR 11,
diameter pipe force main by directional bore and open cut methods of
installation. The force main started
from Sycamore Road and was not connected to the lift station, then ran to a
point adjacent to, but not connecting, to a manhole with an existing 10-inch
diameter sanitary sewer at Touby Pike approximately 1,250 feet north of
Sycamore Road, which flows to the City of Kokomo’s sanitary sewer system to the
wastewater treatment plant (“WWTP”).
11.
On May 25, 2005, the Respondent resubmitted the construction
permit application to IDEM, including plans and specifications for review and
approval of the sanitary sewer system project at the Site.
12.
On June 23, 2005, IDEM sent a notice of deficiency to the
Respondent, for an incomplete construction permit application. The notice specified that certain items were
needed to complete the application and advised that the deficiencies needed to
be addressed within 60 days of the date of the June 23, 2005 correspondence or
the application would be denied.
13.
On August 3, 2005, after IDEM received the required
information, noted in its June 23, 2005 notice of deficiency, it issued the
sanitary sewer construction permit for the Site, Approval No. 17434. IDEM was then notified by an affected party
that construction had commenced prior to issuing the construction permit for
the Site.
14.
According to the Respondent’s engineer, the construction at
the Site, including the connection of the force main at both the lift station
and gravity line ends, with the exception of the force main, was completed
after IDEM issued the sanitary sewer construction permit, Approval No. 17434,
on August 3, 2005, which was prior to IDEM being notified by an affected party
that any construction had commenced before IDEM issued the construction permit
for the Site.
15.
On August 8, 2005, a representative of IDEM
conducted a record review that indicated the Respondent had not submitted a
construction permit application for the sanitary gravity sewer construction
project at the Site prior to commencing construction on or before May 23, 2005. As part of the August 8, 2005 review, IDEM’s
representative contacted the Respondent who confirmed that the work on the
force main portion of the sanitary sewer was complete. IDEM determined that a sanitary sewer construction permit should
not have been issued for this project because construction started prior to the
issuance of the construction permit.
16.
The Respondent commenced construction of the directionally bored
portion of the sanitary sewer project for the Site
prior to obtaining a construction permit, in violation of 327 IAC 3-2-1
and 327 IAC 3-2-2(d).
17.
On August 15, 2005, IDEM received the Respondent’s application
for “as-built” plans and specifications approval.
18.
On August 19, 2005, IDEM issued an “as-built”
notice of deficiency letter to the Respondent, in which IDEM noted that “as-built”
plans and specifications failed to provide the record drawings portion of the
constructed force main and requested a signed, dated, and an engineer stamped
copy of the drawings.
19.
On October 19, 2005, IDEM sent the
plans and specifications review “as-built” letter notifying the Respondent that
a construction permit could not be issued for the sanitary sewer project at the
Site due to the fact that the construction had started prior to issuance of the
permit. According to the
“non-objection” letter issued by IDEM, the cursory review of the “as-built”
plans indicated that they appeared to be acceptable. IDEM did not object to
the use of the sewers provided that the pressure/leakage testing requirement
for the force main to be completed in accordance with 327 IAC 3-6-19 and the
pipe manufacturer.
20.
On January 6, 2006, the pressure/leakage test
was complete. The test results were submitted
to IDEM, in accordance with 327 IAC 3-6-19 and the non-objection “as-built”
letter, which meets the requirements of 327 IAC 3-2-1 and 327 IAC 3-2-2(d).
21.
According the Respondent’s engineer, the force main was not
in use prior to IDEM issuing its non-objection “as-built” letter. Therefore at the time IDEM issued its
non-objection letter, no actual harm to the environment was noted.
22.
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 all
requirements of 327 IAC 3 and all other applicable rules and statutes.
3.
The Respondent is assessed a civil penalty of One Thousand, Five
Hundred Dollars ($1,500). 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.
In the event that the civil penalty required by Order Paragraph
3, is not paid within 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.
5.
The civil penalty is payable by check to the Environmental
Management Special Fund. Payments shall
include the Case Number 2005-15373-W, of this action and shall be mailed to:
Indiana Department of Environmental Management
Cashiers Office-Mail Code 50 - 10C
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 has complied with Paragraphs 3 through 5 of this Agreed Order and IDEM
has issued a close-out letter to the Respondent.
The remainder of this page
intentionally left blank.
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TECHNICAL RECOMMENDATION: |
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RESPONDENT: |
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Department of
Environmental Management |
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Bowyer Brothers, 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: |
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COUNSEL FOR RESPONDENT: |
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Department of
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Office of Legal Counsel |
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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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For The Commissioner: |
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Signed on November 17,
2006 |
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Matthew T. Klein |
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Assistant Commissioner
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Compliance and
Enforcement |
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