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STATE
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BEFORE THE INDIANA
DEPARTMENT |
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COMMISSIONER OF THE
DEPARTMENT Complainant, v. PTI Respondent. |
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AGREED ORDER
Complainant and
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 (“Complainant”) of the Indiana Department of Environmental
Management (“IDEM”), a department of the State of
2.
Respondent is PTI Fort Wayne, LLC (“Respondent”), which owns
and/or operates a development referred to as Gateway Crossing with General
Permit No. INR107256 (the “Permit”), located at the northwest corner of the
intersection of Illinois Road and Thomas Road, Fort Wayne, Allen County,
Indiana (the “Site”).
3.
IDEM
has jurisdiction over the parties and the subject matter of this action.
4.
Pursuant
to IC 13-30-3-3, on January 2, 2008, IDEM issued a Notice of Violation via
Certified Mail to:
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Mr.
Peter Borzak, Manager |
Corporation
Service Company |
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PTI
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Registered
Agent for PTI |
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5. During an investigation, including an inspection on October
18, 2007, November 8, 2007 and December 12, 2007, conducted by a representative
of IDEM, the following violations were found:
a. Pursuant to 327 IAC 15-5-7(a), all storm water quality
measures and erosion and sediment controls necessary to comply with this rule
must be implemented in accordance with the construction plan and sufficient to
satisfy 327 IAC 15-5-7(b).
b. Pursuant to 327 IAC 15-5-7(b) a project site owner shall, at
least, meet the following requirements set forth in this section including the
following:
1)
Sediment-laden water which otherwise would flow from the
project site shall be treated by erosion and sediment control measures
appropriate to minimize sedimentation.
2)
A stable construction site access shall be provided at all
points of construction traffic ingress and egress to the project site.
3)
Public and private roadways shall be kept clear of
accumulated sediment that is a result of run-off or tracking. Bulk clearing of sediment shall not include
flushing the area with water. Cleared
sediment shall be redistributed or disposed of in a manner that is in
accordance with all applicable statutes and regulations.
4)
Collected run-off leaving a project site must be either
discharged directly into a well-defined, stable receiving channel or diffused
and released to adjacent property without causing erosion or pollutant problem
to the adjacent property owner.
5)
Drainage channels and swales must be designed and adequately
protected so that their final gradients and resultant velocities will not cause
erosion in the receiving channel or at the outlet.
6)
Natural features, including wetlands and sinkholes, shall be
protected from pollutants associated with stormwater run-off.
7)
Unvegetated areas that are scheduled or likely to be left
inactive for fifteen (15) days or more must be temporarily or permanently
stabilized with measures appropriate for the season to minimize erosion
potential. Alternative measures to site
stabilization are acceptable if the project site owner or their representative
can demonstrate they have implemented erosion and sediment control measures
adequate to prevent sediment discharge.
Vegetated areas with a density of less than seventy percent (70%)
restabilized using appropriate methods to minimize the erosion potential.
Respondent failed to ensure
that all storm water quality measures and erosion and sediment controls
necessary to comply with this rule were implemented in accordance with a
construction plan and sufficient to satisfy 327 IAC 15-5-7(b). Specifically, it was observed that
Respondent:
1) Failed to implement sufficient erosion and sediment control
measures to minimize sedimentation from sediment-laden water which would flow
from the project site, in violation of 327 IAC 15-5-7(b)(1).
2) Failed to provide stable construction site access at all
points of construction traffic ingress and egress to the project site, in
violation of 327 IAC 15-5-7(b)(3).
3) Failed to keep public and private roadways clear of
accumulated sediment that is a result of run-off or tracking, in violation of
327 IAC 15-5-7(b)(4).
Respondent addressed this
issue on or before the December 12, 2007 inspection.
4) Failed to ensure collected run-off leaving a project site
was either discharged directly into a well-defined, stable receiving channel or
diffused and released to adjacent property without causing erosion or pollutant
problem to the adjacent property owner, in violation of 327 IAC 15-5-7(b)(13).
5) Failed to design and adequately protect drainage channels
and swales so that their final gradients and resultant velocities will not
cause erosion in the receiving channel or at the outlet, in violation of 327
IAC 15-5-7(b)(14).
6) Failed to protect natural features, including wetlands and
sinkholes, from pollutants associated with stormwater run-off, in violation of
327 IAC 15-5-7(b)(15).
7) Failed to temporarily or permanently stabilize unvegetated
areas that were inactive for fifteen (15) days or more with measures
appropriate for the season to minimize erosion potential, in violation of 327
IAC 15-5-7(b)(16).
c. Pursuant to 327 IAC 15-5-2(d), the project site owner shall
complete a sufficient notice of intent letter; ensure a sufficient construction
plan is completed and submitted; ensure compliance with 327 IAC 15-5 during
construction activity and implementation of the construction plan; notify the
department with a sufficient notice of termination letter; and ensure all
persons engaging in construction activities at the Site comply with applicable
requirements of 327 IAC 15-5 and the approved construction plan.
Respondent failed to ensure compliance with 327 IAC 15-5 during the
construction activity and during implementation of a construction plan, in
violation of 327 IAC 15-5-2(d).
d. Pursuant to 327 IAC 2-1-6(a)(1), all waters 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:
(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 other wise impair the designated uses.
Respondent allowed sediment
to discharge off-site into the still-active area of the Lawrence Legal Drain
and a tributary of the Lawrence Legal Ditch all of which are waters of the
State, in amounts sufficient to threaten or cause actual harm to the
environment, in violation of 327 IAC 2-1-6(a)(1), and thus violated to IC
13-30-2-1(1) and IC 13-18-4-5.
e. Pursuant
to Indiana Code (“IC”) 13-30-2-1(1), a person may not 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.
Respondent allowed sediment to discharge off-site into the still-active area of
the Lawrence Legal Drain and a tributary of the Lawrence Legal Ditch all of
which are waters of the State, in amounts sufficient to threaten or cause
actual harm to the environment, in violation of 327 IAC 2-1-6(a)(1), and thus
violated to IC 13-30-2-1(1) and IC 13-18-4-5.
f. 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.
Respondent allowed sediment to discharge off-site into the still-active area of
the Lawrence Legal Drain and a tributary of the Lawrence Legal Ditch all of
which are waters of the State, in amounts sufficient to threaten or cause
actual harm to the environment, in violation of 327 IAC 2-1-6(a)(1), and thus
violated to IC 13-30-2-1(1) and IC 13-18-4-5.
6. In recognition of the settlement reached, 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
Complainant or Complainant’s delegate, and has been received by
Respondent. This Agreed Order shall have
no force or effect until the Effective Date.
2.
Respondent
shall comply with all rules and statutes cited above at issue.
3. Immediately
upon the Effective Date, Respondent shall maintain the erosion and sediment
control measures contained in the approved Construction Plan (“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. Minimize
the migration of sediment off-site and from 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 Storm Water Quality Manual.
This manual is currently available on-line at www.idem.IN.gov/stormwater. 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 Soil and Water Conservation
District (“SWCD”) verify that adequate vegetative cover has been established
and/or that appropriate erosion control measures have been put into place.
For the purpose of this Agreed Order, a
“construction plan” 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.
4. In
the event that deficiencies are found during the inspections of the Site,
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.
5. Respondent
shall make the records required in 327 IAC 15-5-7(b)(18)(D) available for
inspection and copying by representatives of IDEM, and the SWCD.
6. The
requirements of Paragraphs 3, 4, and 5 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. Respondent has no “unsatisfactory” ratings in inspections
from IDEM or the SWCD for one year after the Effective Date,
and a representative of IDEM approves
the adequacy of the remaining permanent erosion control measures in accordance
with 327 IAC 15-5-8(b).
7. All
submittals required by this Agreed Order, unless notified otherwise in writing,
shall be sent to:
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Linda
L. McClure, Enforcement Case Manager |
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Office
of Enforcement – Mail Code 60-02 |
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Indiana
Department of Environmental Management |
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8. Respondent
is assessed a civil penalty of Twelve Thousand Dollars ($12,000). Said penalty amount shall be due and payable
to the Environmental Management Special Fund.
Three Thousand Dollars ($3,000) shall be due within thirty (30) days of
the Effective Date of this Agreed Order.
The remaining Nine Thousand Dollars ($9,000) shall be due in three (3)
consecutive monthly payments of Three Thousand Dollars ($3,000) to begin sixty
(60) days from the Effective Date of this Agreed Order.
9. In
the event the terms and conditions of the following paragraphs are violated,
the Complainant may assess and Respondent 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 implement
the erosion and sediment control measures contained in the approved CP and
any other necessary erosion and sediment controls. |
$500 per week or
part thereof |
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Paragraph 4 |
Failure to
immediately take all actions necessary to correct deficiencies found during
Site inspections. |
$500 per week or
part thereof |
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Paragraph 5 |
Failure to maintain
records as required. |
$250 per week or
part thereof |
10. Stipulated
penalties shall be due and payable within thirty (30) days after Respondent
receives written notice that Complainant has determined a stipulated penalty is
due. Assessment and payment of
stipulated penalties shall not preclude Complainant from seeking any additional
relief against Respondent for violation of this Agreed Order. In lieu of any of the stipulated penalties
set out above, Complainant may seek any other remedies or sanctions available
by virtue of Respondent’s violation of this Agreed Order or Indiana law,
including, but not limited to, civil penalties pursuant to IC 13-30-4.
11. Civil
and stipulated 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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Cashier
– Mail Code 50-10C |
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12. This
Agreed Order shall apply to and be binding upon Respondent and his successors
and assigns. Respondent’s signatories to
this Agreed Order certify that he is fully authorized to execute this Agreed
Order and legally bind the party he represents.
No change in ownership, corporate, or partnership status of Respondent
shall in any way alter his status or responsibilities under this Agreed Order.
13. In
the event that any terms of this 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 this Agreed Order did not contain the invalid terms.
14. 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.
15. 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 Respondent pursuant to this Agreed Order, shall not in any way relieve
Respondent of his obligation to comply with the requirements of his applicable
permits or any applicable Federal or State law or regulation.
16. Complainant does not, by its approval of this Agreed Order,
warrant or aver in any manner that Respondent’s compliance with any aspect of this
Agreed Order will result in compliance with the provisions of any permit,
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 Respondent may incur
as a result of Respondent’s efforts to comply with this Agreed Order.
17. 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, and hereby waives its right
to, seek additional civil penalties for the same violations specified in the
NOV.
18. Nothing in this Agreed Order shall prevent IDEM (or anyone
acting on its behalf) from communicating with the 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 Respondent may
incur as a result of such communications with the EPA or any other agency or entity.
19. This Agreed Order shall remain in effect until Respondent
complies with the terms of Order Paragraph Nos. 3 through 11 and IDEM issues a
Resolution of Case letter.
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TECHNICAL
RECOMMENDATION: |
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RESPONDENT: |
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Department
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Nancy
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COUNSEL
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COUNSEL
FOR RESPONDENT: |
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For
the Department of Environmental Management |
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By: |
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By: |
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Deputy
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APPROVED
AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT THIS |
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2008. |
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For
the Commissioner: |
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Signed
on July 28, 2008 |
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Robert
B. Keene |
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Assistant
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Office
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