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STATE
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BEFORE THE INDIANA DEPARTMENT |
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COMMISSIONER OF THE DEPARTMENT Complainant, v. LAKE LASALLE PROPERTY 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
owns and/or operates a construction project at
3.
IDEM
has jurisdiction over the parties and subject matter of this action.
4.
Pursuant
to IC 13-30-3-3, May 22, 2009, IDEM issued a Notice of Violation via Certified
Mail to:
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Charles
Backofen, President |
Linda
Schwaner, Registered Agent |
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Lake
LaSalle Property Owners Association, Inc. |
Lake
LaSalle Property Owners Association, Inc. |
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970
Keyhole Cove |
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5.
During
an investigation on October 28, 2008, conducted by representatives of IDEM, the
following violations were found:
6.
Pursuant
to 327 Indiana Administrative Code (“IAC”) 2-1.5-2 and Indiana Code (“IC”)
13-11-2-265(a), “Waters”, for purposes of water pollution control laws and
environmental management, means:
(1)
the
accumulation of water, surface and underground, natural and artificial, public
and private; or
(2)
a
part of the accumulations of waters of the State, that are wholly or partially
within, flow through, or border upon
a.
an
exempt isolated wetland;
b.
private
pond; or
c.
an
off-stream pond, reservoir, wetland, or other facility built for reduction or
control of pollution or cooling of water before discharge.
(3)
The
term includes all waters of the
7.
During
the construction project, Respondent conducted regulated activities at the
Site. Specifically, Respondent discharged
dredged or fill material into unnamed tributaries of Big Thunder Creek and
Lawrence Creek branches of
8.
Pursuant
to Section 404 of the Clean Water Act (33 USC 1341), which provides for IDEM to administer its own
401 Water Quality Certification Program for construction projects that impact a
wetland, the 401 Water Quality Certification outlines compensation requirements
for the loss of wetland use including the restoration success criteria, deed
restriction, and a Monitoring Plan.
Filling of waters of the
9.
Pursuant
to 327 IAC 5-2-2, any discharge of pollutants into waters 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. 327 IAC 5-2-4(2) excludes from regulation a
site for which a permit has been issued under Section 404 of the Clean Water
Act (33 USC 1341).
10.
On
or about October 28, 2008, IDEM’s representatives discovered that Respondent
caused and/or contributed to cause earthen fill material to enter waters of the
State by filling streams and dredging areas at the Site. Respondent discharged earthen fill material
into waters of the State without first obtaining a valid 404 Permit and Section
401 Water Quality Certification, in violation of 404 Permit and Section 401
Water Quality Certification requirements and 327 IAC 5-2-2.
11.
On
January 15, 2009, IDEM issued a denial of Section 401 Water Quality
Certification, which referenced IDEM’s December 16, 2008 violation letter that
outlined Respondent’s deficient Section 401 Water Quality Certification application
dated September 30, 2008.
12.
On
July 24, 2009, Respondent submitted its complete application for Section 401
Water Quality Certification requesting after-the-fact authorization for the
dredging of accumulated sediment, installation of two concrete weir structures
in the upper reaches of
13.
On
October 9, 2009, IDEM issued the Section 401 Water Quality Certification
after-the-fact authorization to mitigate the impact that was caused by the
dredging project at the Site, IDEM No. 2009-391-07-DDC-V, and USACE No.
LRL-2008-971-lcl, in accordance with the 404 Permit and Section 401 Water
Quality Certification requirements and 327 IAC 5-2-2.
14.
Pursuant
to 327 IAC 15-5-1, the purpose of this rule is to establish requirements for
stormwater discharges from construction activities of one (1) acre or more so
that public health, existing water uses, and aquatic biota are protected.
15.
Pursuant
to 327 IAC 15-3-3, any person proposing a new discharge that will be subject to
a general permit rule shall submit a notice of intent (“NOI”) letter and
additional information as required by the applicable general permit rule at
least one hundred eighty (180) days before the date on which the discharge is
to commence unless permission for a later date has been granted by the
commissioner or is established in the applicable general permit rule. A construction activity NOI letter shall be submitted
in accordance with
327
IAC 15-5-6.
16.
Pursuant
to 327 IAC 15-5-2, the requirements of 327 IAC 15-5, apply to all persons who
do not obtain an individual NPDES Permit under 327 IAC 15-2-6; meet the general
permit rule applicability requirements under 327 IAC 15-2-3; and are involved
in construction activity that includes clearing, grading, excavation, and other
land disturbing activities, except operations that result in the disturbance of
less than one (1) acre of total land area, and that are not, part of a larger
common plan of development or sale.
17.
Respondent
did not submit a NOI letter and was not authorized under the NPDES General
Permit Rule, to hold a General Permit, for stormwater discharges associated
with construction activity, in violation of 327 IAC 15-3-3 and 327 IAC 15-5-2.
18.
On
August 11, 2009, Respondent submitted its NOI letter for the required Site stabilization
plan, as required by 327 IAC 15-3-3 and 327 IAC 15-5-2.
19.
On
November 6, 2009, IDEM issued a Notice of Sufficiency letter that authorized Respondent’s
construction activity at the Site under general stormwater permit No.
INR10B506, which is due to expire on August 11, 2014, as required by 327 IAC
15-3-3 and 327 IAC 15-5-2.
20.
Pursuant
to 327 IAC 15-5-6(b), for a project site where the proposed land disturbance is
one (1) acre or more as determined under section 2 of this rule, the following
requirements must be met:
(1)
A
construction plan must be submitted according to the following:
(A)
Prior to
the initiation of any land disturbing activities.
(B)
Sent to
the appropriate Soil Water Conservation District (“SWCD”) or other entity
designated by the department for:
(i)
review
and verification that the plan meets the requirements of the rule; or
(ii)
a single
coordinated review in accordance with subsection (d)(3) if:
(AA)
the
construction activity will occur in more than one (1) SWCD; and
(BB)
the
project site owner has made a request for a single coordinated review.
(2)
If the
construction plan required by subdivision (1) is determined to be deficient,
the Brown County SWCD, or other entity designated by the department as the
reviewing agency, may require modifications, terms, and conditions as necessary
to meet the requirements of the rule. The initiation of construction activity
following notification by the reviewing agency that the plan does not meet the
requirements of the rule is a violation and subject to enforcement action.
21.
Respondent failed to submit a construction
plan to SWCD, or other entity designated by the
department, prior
to commencing land disturbing activities at the Site, in violation of 327 IAC
15-5-6(b).
22.
Pursuant
to 327 IAC 15-5-4 (32), “sedimentation” means the settling and accumulation of
unconsolidated sediment carried by stormwater run-off.
23.
Pursuant
to 327 IAC 15-5-7(a), all stormwater quality measures and erosion and sediment
controls necessary to comply with this rule must be implemented in accordance
with the construction plan sufficient to satisfy subsection (b).
24.
Pursuant
to 327 IAC 15-5-7(b)(1), a project owner shall, at least meet the following
requirement: sediment-laden water, which otherwise would flow from the project
site, shall be treated by erosion and sediment control measures appropriate to
minimize sedimentation.
25.
Pursuant
to 327 IAC 15-5-7(b)(5), stormwater run-off leaving a project site must be
discharged in a manner that is consistent with applicable State or federal law.
26.
Pursuant
to 327 IAC 15-5-7(b)(8), the stormwater pollution prevention plan (“SWP3”)
shall serve as a guideline for stormwater quality, but should not be
interpreted to be the only basis for implementation of stormwater quality
measures for a project site. The project
site owner is responsible for implementing, in accordance with this rule, all
measures necessary to adequately prevent polluted stormwater run-off.
27.
Pursuant
to 327 IAC 15-5-7(b)(9), the project site owner shall inform all general
contractors, construction management firms, grading or excavating contractors,
utility contractors, and the contractors that have primary oversight on
individual building lots of the terms and conditions of this rule and the
conditions and standards of the SWP3 and the schedule for proposed
implementation.
28.
Pursuant
to 327 IAC 15-5-7(b)(10), phasing of construction activities shall be used,
where possible, to minimize disturbance of large areas.
29.
Pursuant
to 327 IAC 15-5-7(b)(11), appropriate measures shall be planned and installed
as part of an erosion and sediment control system.
30.
Pursuant
to 327 IAC 15-5-7(b)(12), all stormwater quality measures must be designed and
installed under the guidance of a trained individual.
31.
Pursuant
to 327 IAC 15-5-7(b)(13), 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.
32.
Pursuant
to 327 IAC 15-5-7(b)(14), 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.
33.
Pursuant
to 327 IAC 15-5-7(b)(15), natural features, including wetlands and sinkholes,
shall be protected from pollutants associated with stormwater run-off.
34.
Pursuant
to 327 IAC 15-5-7(b)(17), during the period of construction activities, all
stormwater quality measures necessary to meet the requirements of this rule
shall be maintained in working order.
35.
Based
on the Site inspection conducted by IDEM representatives on October 28, 2008,
it was observed that Respondent failed to implement and maintain erosion and
sediment control measures at the Site, and/or cause its agent, contractor,
and/or subcontractor to implement erosion and sediment control measures necessary
to satisfy the requirements of 327 IAC 15-5 during the period of construction
activity from on or before August 15, 2008, until the completion of the
construction project. Specifically,
erosion and sediment control measures were improperly installed by Respondent
and/or its agent, and not maintained causing sediment accumulation; silt fences
and other erosion and sediment control measures were not properly installed at
the Site, causing dredged and/or fill material to enter unnamed tributaries of
Big Thunder Creek and Lawrence Creek branches of Lake LaSalle, which are waters
of the State; in violation of 327 IAC 15-5-7(b).
36.
Pursuant
to 327 IAC 2-1-2(1), for all waters of the state, existing beneficial uses
shall be maintained and protected. No degradation
of water quality shall be permitted which would interfere with or become
injurious to existing and potential uses.
37.
Pursuant
to 327 IAC 2-1-6(a)(1), all surface 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 that
will settle to form putrescent or otherwise objectionable deposits, that are in
amounts sufficient to be unsightly or deleterious, that produce color, odor or
other conditions in such degree as to create a nuisance, which are in amounts
sufficient to be acutely toxic to, or to otherwise severely injure or kill aquatic
life, other animals, plants, or humans.
38.
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.
39.
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.
40.
The
disturbance of the stream bed at the Site, the deposition of sediment and/or
soil on the stream bank without a Section 401 Water Quality Certification from
IDEM, and the unpermitted discharge to waters of the State, are all in
violation of IC 13-30-2-1, IC 13-18-4-5, 327 IAC 5-2-2, 327 IAC 2-1-2(1), and
327 IAC 2-1-6(a)(1).
41.
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 above at
issue.
3.
Immediately,
upon the of Effective Date, Respondent shall implement the disposal site
stabilization plan (“Stabilization Plan”) that meets the intent of 401 Water
Quality Certification No. 2009-391-07-DDC-V (See Attachment “A”) and the
general stormwater permit No. INR10B506, under 327 IAC 15-5.
4.
Respondent
shall timely submit any plan, as required by Attachment “A”. Upon review, if IDEM deems any plan to be
inadequate, a revised plan shall be submitted within fifteen (15) days of
receipt of written notice from IDEM of the inadequacies thereof. If, after submission of the revised plan,
IDEM still finds the document to be inadequate, then IDEM will suggest specific
modifications to be made to the plan and require re-submittal by a specific
date. Respondent is required to
incorporate the IDEM-suggested modifications (or subsequent alternative plan
that is acceptable to IDEM) within the prescribed time frames. Respondent, upon receipt of written
notification from IDEM, shall immediately implement the approved plan and
adhere to the milestone dates therein.
5.
Upon
receipt of written notice from IDEM’s approval of any plan submitted pursuant
to Order Paragraph 3 above, Respondent shall immediately notify
IDEM and USACE a minimum of forty-eight (48) hours prior to commencing the Stabilization
Plan project at the Site.
6.
Upon
completion of the approved Site Stabilization Plan and compensatory mitigation project,
Respondent is required to monitor the Site and timely submit annual reports to
IDEM and USACE, as required by 401 Water Quality Certification No.
2009-391-07-DDC-V (See Attachment “A”).
7.
For
the purposes of this Agreed Order, a Construction Plan (“CP”) is defined as a
representation of a project site and all activities associated with the
project. The CP 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. A stormwater pollution
prevention plan (“SWP3”) is a part of the CP, pursuant to 327 IAC 15-5-4(5) and
327 IAC 15-5-4 (35).
8.
Respondent
shall, immediately upon the Effective Date, implement the erosion and sediment
control measures contained in the approved 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.
9.
Respondent
shall, upon the Effective Date, and continuing until the construction at the
site has been completed, implement a self-monitoring program as required by 327
IAC 15-5-7(18), including assuring that a trained individual performs a written
evaluation of the project site by the end of the next business day following
each measurable storm event; and at a minimum of one (1) time per week, in
order to determine whether the erosion and sediment controls are:
a. properly
installed and maintained; and
b. adequate
to ensure compliance with the requirements of 327 IAC 15-5-7, and to prevent
sediment from leaving the site and entering or threatening to enter waters of
the State.
For the purposes of this Agreed
Order, a “measurable storm event” is defined as a precipitation event that
results in a total measured precipitation accumulation equal to or greater than
0.5 inches of rainfall.
10.
In the event that deficiencies are found
during the inspections of the Site conducted pursuant to Order Paragraph 9 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 and sediment control
measures, if determined necessary.
11.
Respondent shall maintain records of the
inspections conducted pursuant to Order Paragraph 9 above and corrective
actions taken pursuant to Order Paragraph 10 above. The records shall include, but not
necessarily be limited to:
a.
the
date and time of inspection;
b.
the
weather conditions at the time of the inspection;
c.
the
name of the individual conducting the inspection;
d.
a
description of observations made during the inspection, specifically including
a description of any deficiencies that were found; and
e.
a
description of the corrective actions taken as a result of deficiencies found
during the inspection.
12.
Respondent
shall make the records required pursuant to Order Paragraph 11 above available
for inspection and copying by representatives of IDEM and its representatives.
13.
Respondent
shall, within fifteen (15) days of the Effective Date, provide written
notification to all parties with access to the Site, including contractors and
subcontractors, of the requirements contained in the approved CP.
14.
Respondent
shall, within thirty (30) days of the Effective Date, submit to IDEM a copy of
the notification required pursuant to Order Paragraph 13 above and a statement
certifying that the notification was provided to all parties with access to the
Site.
15.
Upon
completion of all general stormwater permit No. INR10B506 requirements for
termination at the Site, Respondent shall first receive verification from IDEM
that the project is complete and ready to be terminated. Once verification has been received from
IDEM, Respondent shall submit the notice of termination (“NOT”), as outlined in
327 IAC 15-5-8.
16.
Respondent
shall, within ten (10) days of the completion of the milestone dates for any plan
required above, Respondent shall submit written documentation of completion of
each milestone to IDEM’s Office of Water Quality Water Enforcement Section,
Section 401 Water Quality Certification Program, and USACE at the addresses in
Order Paragraph 17 below.
17.
All
submittals required by this Agreed Order, unless notified otherwise in writing,
shall be sent to:
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Aletha
Lenahan, Enforcement Case Manager |
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Indiana
Department of Environmental Management |
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Water
Enforcement Section |
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Office of
Water Quality – Mail Code 60-02W |
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And |
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David
Carr, Wetlands Project Manager |
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Indiana
Department of Environmental Management |
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Section
401 Water Quality Certification Program |
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Office of
Water Quality - Mail Code 65-42 WQS |
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And |
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Laban Lindley, Wetlands Project Manager |
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18.
Respondent is assessed a civil penalty of Five
Thousand Dollars ($5,000). Said penalty amount shall be due and
payable to the “Environmental Management Special Fund” thirty (30) days of the
Effective Date. In the event that the
civil penalty is not paid within thirty (30) days of the Effective Date,
Respondents 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.
19.
In the event the terms and conditions of
the following paragraphs are violated, Complainant may assess, and Respondent
shall pay, a stipulated penalty in the following amount:
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PARAGRAPH |
VIOLATION |
PENALTY DUE |
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3 |
Failure
to timely implement Stabilization
Plan,
as required. |
$500
per day for each day past the deadline. |
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4 |
Failure
to timely submit any plan or revision required by the Stabilization Plan (see Attachment “A”). |
$500
per day for each day past the deadline. |
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5 |
Failure
to notify IDEM and USACE at a minimum of forty-eight (48) hours prior to
commencing any stabilization, mitigation or restoration project at the Site. |
$500
per day for each day past the deadline. |
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6 |
Failure
to monitor the Site, as required by Respondent’s 401 Water Quality Certification. |
$500
per day for each day past the deadline. |
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6 |
Failure
to timely submit the annual monitoring reports to IDEM and USACE, as
described in the 401
Water Quality Certification. |
$500
per day for each day past the deadline. |
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8 |
Failure
to implement erosion and sediment control measures contained in the approved
CP, as necessary to comply with 327 IAC 15-5 requirements. |
$500
per violation/per day. |
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9 |
Failure
to timely implement a self-monitoring program to inspect the Site, as
required. |
$500
per violation/per day. |
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10 |
Failure
to immediately take all actions necessary to correct deficiencies found
during Site inspections. |
$500
per violation/per day. |
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11 |
Failure
to maintain inspection records, as required. |
$500
per day for each day past the deadline. |
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12 |
Failure
to maintain required records at the Site, or failure to make required records
available to IDEM and SWCD. |
$500
per violation/per day. |
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13 |
Failure
to timely provide
written notification to all parties with access to the Site, as required. |
$500
per week/per event late. |
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14 |
Failure
to timely submit certification statement and copy of notice provided pursuant
to Order Paragraph 13. |
$500
per violation/per day. |
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15 |
Failure
to receive Site completion verification from IDEM prior to submission of NOT. |
$500
per day for each day past the deadline. |
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15 |
Failure
to submit the NOT to IDEM upon termination of construction activities at the
site. |
$500
per day for each day past the deadline. |
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16 |
Failure
to timely submit documentation of completion of each milestone, as required
for the Stabilization
Plan and compensatory mitigation project. |
$500
per week/per event late. |
20.
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.
21.
Civil and stipulated penalties are payable
by check to the Environmental Management Special Fund. Checks shall include the Case Number: 2009-18336-W,
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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22.
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.
23.
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.
24.
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.
25.
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.
26.
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.
27.
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 Notice of Violation.
28.
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 Respondent may incur
as a result of such communications with the EPA or any other agency or entity.
29.
This
Agreed Order shall remain in effect until Respondent has complied with Order Paragraphs
3 through 21 and IDEM issues a Resolution of Case letter to Respondent.
Remainder
of this page intentionally left blank.
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TECHNICAL
RECOMMENDATION: |
RESPONDENT: |
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Department of
Environmental Management |
Lake LaSalle Owners
Association, Inc. |
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By:
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By: |
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Mark W. Stanifer, Chief Water Enforcement Section |
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Date:
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COUNSEL FOR
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COUNSEL FOR RESPONDENT: |
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For Department of
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By: ____________________ |
By:
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Date:
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Date: _______________________ |
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APPROVED AND ADOPTED BY THE
INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT
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2010. |
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Signed on March 15, 2010 |
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Bruno
Pigott |
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Assistant Commissioner |
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Office of Water Quality |
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