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STATE
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BEFORE THE INDIANA
DEPARTMENT |
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COMMISSIONER OF THE
DEPARTMENT Complainant, v. VICTOR OOLITIC STONE
COMPANY, 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. 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 Respondent may have in any future administrative or judicial proceeding,
except a proceeding to enforce this 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 Victor Oolitic Stone Company (“Respondent”),
which owns and/or operates the May Hollow Limestone Quarry with General Storm
Water Permit No. INR107802 (the “Permit”), located south of Victor Pike and
west of
3.
IDEM
has jurisdiction over the parties and the subject matter of this action.
4.
Pursuant
to IC 13-30-3-3, on January 16, 2008, IDEM issued a Notice of Violation (“NOV”)
via Certified Mail to:
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Mr.
Richard M. Gold, President |
Mr.
Randall Morrison, Registered Agent for |
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Victor
Oolitic Stone Company |
Victor
Oolitic Stone Company |
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7850
South Victor Pike |
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5. During an investigation, including an inspection on March
27, 2007, July 5, 2007, and August 29, 2007, conducted by a representative of
IDEM, the following violations were found:
a. Pursuant to 327 IAC 15-2-5(a), any person subject to the
requirements of 327 IAC 15 shall submit a notice of intent ("NOI")
letter that complies with 327 IAC 15-2-5, 327 IAC 15-3, and the additional
requirements in the applicable general permit rule. Respondent failed to submit an NOI letter to
IDEM prior to initiating land disturbing activities at the Site.
Respondent submitted an NOI on September 12, 2007 and received a Notice of
Sufficiency on October 25, 2007.
b. Pursuant
to 327 IAC 15-5-5, the information set forth in 327 IAC 15-5-5 must be
submitted by the project site owner with a complete NOI letter under this rule,
including a notification from the SWCD, DNR-DSC, or other entity designated by
the department as the reviewing agency indicating that the construction plans
are sufficient to comply with this rule.
Respondent failed to submit an NOI letter to IDEM prior to initiating
land disturbing activities at the Site.
Respondent
submitted an NOI on September 12, 2007 and received a Notice of Sufficiency on
October 25, 2007.
c. Pursuant to 327 IAC 15-5-6(a), after the project site owner
has received notification from the reviewing agency that the construction plans
meet the requirements of the rule or the review period outlined in subsection
(b)(3) has expired, all NOI letter information required under 327 IAC 15-5-5 shall
be submitted to the commissioner at least forty-eight (48) hours prior to the
initiation of land disturbing activities at the site. Respondent initiated land disturbing
activities at the Site prior to submitting a NOI.
Respondent submitted an NOI on September 12, 2007 and received a Notice of
Sufficiency on October 25, 2007.
6. During an investigation, including an inspection on March
27, 2007, July 5, 2007, August 29, 2007 and October 5, 2007, conducted by a
representative of IDEM, the following violations were found:
a. Pursuant
to 327 IAC 15-5-6.5(a), for project sites that do not meet the criteria in 327
IAC 15-5-6.5(b), the project site owner shall develop a set of construction
plans. Storm water quality measures
included in the plan must achieve the minimum project site requirements
specified in 327 IAC 15-5-7, and must include the information set forth in 327
IAC 15-5-6.5(a). Respondent failed to
submit a construction plan for the Site prior to initiating land disturbing
activities.
Respondent submitted a sufficient Construction Plan on October 10, 2007.
b. Pursuant
to 327 IAC 15-5-6(b)(1), for a project site where the proposed land disturbance
is one (1) acre or more as determined under 327 IAC 15-5-2, a construction plan
must be submitted prior to the initiation of any land disturbing activities,
and sent to the appropriate SWCD or other entity designated by IDEM for review.
Respondent failed to submit a construction plan for the Site prior to
initiating land disturbing activities.
Respondent
submitted a sufficient Construction Plan on October 10, 2007.
c. 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).
d. 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)
The project site owner shall post a notice near the main
entrance of the project site, in accordance with subdivision (6) of this rule.
3)
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.
4)
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.
5)
Natural features, including wetlands and sinkholes, shall be
protected from pollutants associated with stormwater run-off.
6)
Unvegetated areas that are scheduled or likely to be left
inactive for fifteen (15) ays 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.
7)
A self-monitoring program that includes provisions of
subdivision (18) of this rule shall be implemented.
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 erosion and sediment control measures to
minimize sedimentation from sediment-laden water which would flow from the
project site.
2)
Failed to post a notice near the main entrance of the
project site, in accordance with subdivision (6) of this rule.
3)
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.
4)
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.
5)
Failed to protect natural features, including wetlands and
sinkholes, from pollutants associated with stormwater run-off.
6)
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.
e. 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.
f. 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
and other material to discharge off-site into May Creek and tributaries to May
Creek, all of which are waters of the State.
g. 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 and other material to discharge off-site
into May Creek and tributaries to May Creek, all of which are waters of the
State.
h. 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 and other material to discharge off-site into May
Creek and tributaries to May Creek, all of which are waters of the State.
7. During an investigation, including an inspection on October
5, 2007, conducted by a representative of IDEM, the following violation was
found:
a. Pursuant to 327 IAC 15-5-7(b)(18), a self-monitoring program
that includes the following must be implemented:
(A) A trained individual shall perform a written evaluation of the
project site:
(i) by the end of the next business day following each
measurable storm event; and
(ii) at a minimum of one (1) time per week.
(B) The evaluation must:
(i) address the maintenance of existing storm water quality
measures to ensure they are functioning properly; and
(ii) identify additional measures necessary to remain in
compliance with all applicable statutes and rules.
(C) Written
evaluation reports must include:
(i) the
name of the individual performing the evaluation;
(ii) the
date of the evaluation;
(iii) problems
identified at the project site; and
(iv) details
of corrective actions recommended and completed.
(D) All evaluation reports for the project site must be made
available to the inspecting authority within forty-eight (48) hours of a
request.
Respondent
failed to implement a self-monitoring program for the Site prior to initiating
land disturbing activities. Respondent
began implementing a self-monitoring program for the Site on September 3, 2007.
8. This
Agreed Order resolves the NOV issued on January 16, 2008 and the violations
noted in the inspection reports generated by IDEM on or about March 27, 2007,
July 5, 2007, August 29, 2007 and October 25, 2007.
9. 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 implement and 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. 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 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. Immediately
upon the Effective Date, Respondent shall implement a self-monitoring program
and maintain inspection records as required by 327 IAC 15-5-7(b)(18).
5. In
the event that deficiencies are found during the inspections of the Site
conducted pursuant to Order Paragraph 4 above, 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.
6. Respondent
shall make the records required in Order Paragraph 4 above available for
inspection and copying by representatives of IDEM, and the SWCD.
7. The
requirements of Paragraphs 3, 4, 5 and 6 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 and a representative of IDEM approves the
adequacy of the remaining erosion control measures in accordance with 327 IAC
15-5-8(b).
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).
8. 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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9. 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.
One Thousand Dollars ($1,000) shall be due within thirty (30) days of
the Effective Date of this Agreed Order.
The remaining Eleven Thousand Dollars ($11,000) shall be due in eleven
(11) consecutive monthly payments of One Thousand Dollars ($1,000) to begin
sixty (60) days from the Effective Date of this Agreed Order.
10. 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. |
$250 per week or
part thereof |
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Paragraph 4 |
Failure to inspect
the Site as required. |
$250 per week or
part thereof |
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Paragraph 5 |
Failure to
immediately take all actions necessary to correct deficiencies found during
Site inspections. |
$250 per week or
part thereof |
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Paragraph 6 |
Failure to maintain
records as required. |
$125 per week or
part thereof |
11. 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.
12. 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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13. 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.
14. 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.
15. 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.
16. 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.
17. 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.
18. 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.
19. 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.
20. 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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By: |
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By: |
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Nancy
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Printed: |
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Office
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Title: |
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Date: |
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COUNSEL
FOR COMPLAINANT: |
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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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Date: |
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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 October 23, 2008 |
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Robert
B. Keene |
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Assistant
Commissioner |
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Office
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