STATE OF INDIANA

)

SS:

BEFORE THE INDIANA DEPARTMENT OF

 

)

 

ENVIRONMENTAL MANAGEMENT

COUNTY OF MARION

)

 

 

 

COMMISSIONER OF THE DEPARTMENT

)

 

OF ENVIRONMENTAL MANAGEMENT,

)

 

)

Complainant,

)

 

)

v.

)

Case No. 2013-21465-Q

 

)

 

All American RV Resorts I, LLC,

)

 

)

Respondent.

)

 

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 Indiana Code (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 Indiana created by IC 13-13-1-1.

 

2.             Respondent is All American RV Resorts I, LLC (Respondent), which owns the Blue Lake Campground, located at 5453 Blue Lake Road, Churubusco, Whitley County, Indiana (the Site).

 

3.             IDEM has jurisdiction over the parties and the subject matter of this action pursuant to IC 13-30-3.

 

4.             Pursuant to IC 13-30-3-3, on April 11, 2013, IDEM issued a Notice of Violation (NOV) via Certified Mail to All American RV Resorts I, LLC.

 

5.             During an investigation conducted by IDEM representatives, violations were found, as described below.

 

6.             On February 23, 2011, IDEM staff conducted an inspection at the Site.  During this inspection, it was observed and documented that Respondent had caused unauthorized fill to be placed in a high quality, emergent, scrub/shrub, wetland (the Wetland), which is contiguous with a freshwater lake (Blue Lake) that has been designated for public recreation use.  The fill material had been deposited into the Wetland, which has been deemed to be Waters of the United States.  The Wetland disturbed also constitutes Waters of the State.

 

On September 13, 2011, IDEM staff and the United States Army Corps of Engineers (the Corps) conducted an inspection at the Site.  Specifically, IDEM staff documented that there were two (2) areas where fill had been discharged into the Wetland contiguous with Blue Lake, one area was approximately 0.49 acre of fill and another area was approximately 0.71 acre of fill.  The total area of fill in the Wetland was approximately 1.2 acres.

 

On December 12, 2011, the Corps sent notification to Respondent that the Corps exercises regulatory jurisdiction over Blue Lake and the adjacent Wetlands under Section 404 (33 USC 1344) of the Clean Water Act, and that it is unlawful under Section 301 of the Act (33 USC 1311) to place pollutants into Waters of the United States without prior authorization.  Respondent was notified that the Corps had not received a Department of the Army permit issued in accordance with Section 404 for the fill material that had been deposited into Waters of the United States at the Site.

 

On February 23, 2012, IDEM staff and the Corps met with Respondent’s representatives at the Site and again observed the unauthorized fill in the Wetland.

 

On July 10, 2012, the United States Environmental Protection Agency (US EPA) and the Corps conducted an inspection at the Site during which the extent of the fill material was investigated and the Wetland impacted was mapped out.

 

On August 2, 2012, US EPA notified Respondent that it confirmed the Wetland impacts found by the Corps and IDEM in 2011.  US EPA notified Respondent that the fill material needed to be removed and for any fill that remains, Respondent would be required to mitigate for those impacts by either creating or restoring at least a like amount of wetlands.  The Corps and IDEM would handle any after-the-fact permitting.

 

On October 11, 2012, US EPA sent notification to Respondent that it had not yet received a response from Respondent regarding US EPA’s above referenced August 2, 2012, letter.

 

On April 14, 2014, IDEM staff met with Respondent’s representatives at the Site and again observed the unauthorized fill in the Wetland.

 

As a result of the meeting on April 14, 2014, Respondent presented documentation to IDEM that changed the scope of Respondent’s unauthorized fill in the Wetland.  After consultation with US EPA, IDEM’s representative agreed that 0.15 acre of the previously identified 0.49 acre of unauthorized wetland fill was placed in the Wetland prior to Respondent’s ownership of the Site.  Therefore, IDEM staff has documented that Respondent caused unauthorized fill to be placed in the Wetland in two (2) areas where fill had been discharged into the Wetland contiguous with Blue Lake.  One area consisted of approximately 0.34 acre of fill, and another area was approximately 0.71 acre of fill.  Therefore, the total area that Respondent caused unauthorized fill to be placed in the Wetland was approximately 1.05 acres.

 

7.             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 the discharge.

 

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.

 

Pursuant to IC 13-30-2-1, 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.

 

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 IC 13-18-4-1, and IC 13-18-4-3.

 

During the above noted inspections conducted at the Site by IDEM, US EPA, and/or the Corps on February 23, 2011, September 13, 2011, July 10 2012, and April 14, 2014, it was observed and documented that Respondent caused fill to be placed in the Wetland without prior authorization, which violates 327 IAC 2-1-6(a)(1), which is a rule of the Water Pollution Control Board, and thus also violates IC 13-30-2-1 and IC 13-18-4-5.

 

IDEM records further indicate that Respondent did not possess authorization for the discharge of the fill material referred to as a “Section 401 Water Quality Certification,” which constituted a point source discharge of pollutants into Waters of the State, without being in conformity with a valid NPDES permit prior to the discharge, in violation of 327 IAC 5-2-2, and therefore, in violation of IC 13-30-2-1.

 

8.             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.

 

Pursuant to IC 13-30-2-1, 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.

 

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 IC 13-18-4-1, and IC 13-18-4-3.

 

During the above referenced inspections conducted at the Site by IDEM, US EPA, and/or the Corps on February 23, 2011, September 13, 2011, July 10 2012, and April 14, 2014, it was documented that Respondent placed fill material in the Wetland at the Site, resulting in objectionable deposits, and Respondent had failed to maintain and protect existing beneficial uses, degraded the water quality, and interfered with the existing and potential uses of the Wetland at the Site, in violation of 327 IAC 2-1-6(a)(1), and thus violating IC 13-30-2-1 and IC 13-18-4-5.

 

9.             The April 11, 2013 NOV contained an offer to enter into an Agreed Order containing actions required to correct the violations of IC 13-30-2-1 and 327 IAC 2-1-6(a)(1).

 

10.         On December 22, 2015, IDEM issued the Notice and Order of the Commissioner, pursuant to IC 13-30-3-4, IC 13-30-3-10, and IC 13-30-3-11.

 

11.         On January 11, 2016, Respondent appealed the Notice and Order of the Commissioner.

 

12.         On October 7, 2017, pursuant to negotiations, Respondent submitted a Supplemental Environmental Project (SEP) application to IDEM.

 

13.         On October 25, 2017, IDEM notified Respondent that it approved the SEP, which will be completed by Respondent in lieu of paying the full amount of the assessed civil penalty.

 

14.         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 adopted by Complainant or Complainant’s delegate (as evidenced by signature), and the adopted Agreed Order has been received by Respondent.  This Agreed Order shall have no force or effect until the Effective Date.

 

2.             Respondent shall comply with the statutes and rules listed in the findings above at issue.

 

3.             For the purposes of this Order:

 

“Construction” refers to construction allowed by IDEM under any approved Restoration or Mitigation Plan, unless otherwise referred to in any plan or in Order Paragraphs 4 and 5 below, which is construction that would require general permit coverage under 327 IAC 15-5.

 

“Pre-construction” for a Restoration Plan refers to the Site prior to Respondent’s unauthorized fill of the wetlands at the Site on or before February 23, 2011.

“The Wetlands” refers to the impacted wetlands at the Site.  The wetlands include area A (0.25 acre), which was a scrub/shrub and forested wetland, and area B (0.34 acre) and area C (0.37 acre), which were emergent wetlands.

 

“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 in a 24-hour period.

 

4.             Within 30 days of the Effective Date, Respondent shall apply for after-the-fact (ATF) 401 Water Quality Certification (WQC) and the United States Army Corps of Engineers (USACE), for impacts to wetland area B, the application and all associated documents must be submitted for IDEM review and approval.

 

5.             Within 60 days of the Effective Date, Respondent is to submit a Restoration Plan to restore wetland areas A, and C.  Respondent is required to remove all unauthorized fill material from wetland areas A and C at or near the Blue Lake shoreline, and return wetland areas A and C to its pre-construction condition.  Respondent is required to replant wetland areas A and C with approved-wetland vegetation.  The Restoration Plan shall include, but not be limited to, the following:

 

A.            A schedule of implementation with start and end dates for all phases of the restoration activities.

B.            A complete outline of activities to be undertaken in the restoration efforts, including written information in narrative format as to how the fill will be removed and erosion and sediment control measures (ESCMs) will be installed during fill removal at the Site and the disposal area if at an alternate location.

C.            Cross-Sections, layout plans, and other necessary drawings showing restoration site pre-construction contours and proposed restoration contours.

D.            Specific information on replanting, which includes identification of wetland areas A and C that will be replanted, a complete list of appropriate native vegetation, and information on the species and quantities of vegetation to be replanted.

E.            A plan to monitor and submit annual monitoring reports for a minimum of one year (1) and until IDEM determines that wetland areas A and C are successfully restored and meet the success criteria.

F.        Information on the permanent disposal location of the removed fill material.

G.       ESCMs shall be maintained at the Site until the reconstructed wetland areas A and C have been completely re-vegetated and the Site is permanently stabilized.

 

6.             Within 60 days of the Effective Date, to mitigate for impacts to wetland area B, Respondent shall record a Conservation Easement to preserve 12 - 15 acres of wetland/shrub/scrub forest to the west and the north of the Site, and once recorded, provide a copy to IDEM.

 

7.             The Restoration Plan required by this Order is subject to IDEM approval.  In the event IDEM determines that any plan submitted by Respondent is deficient or otherwise unacceptable, Respondent shall revise and resubmit the plan to IDEM in accordance with IDEM’s notice.  After three submissions of such plan by Respondent, IDEM may seek civil enforcement of this Order.

 

Any changes in the project design or scope of work that are not detailed in the 401 WQC or any approved plan, as described above, as modified by Respondent is strictly prohibited without first submitting a revised plan and/or certification modification request, and obtaining IDEM’s approval prior to commencing, restarting and/or continuing work at the Site.

 

Failure to submit a request and obtain approval for any change to an approved plan, prior to starting restoration, will subject Respondent to stipulated penalties and further enforcement action.

 

8.             Respondent shall allow IDEM representatives and/or its authorized representatives (including an authorized contractor), upon the presentation of proper credentials:

 

A.            To enter Respondent’s property, including impact and restoration wetland areas at the Site;

B.            To have access to, and copy, at reasonable times, any records that must be kept under the conditions of the Restoration Plan, and/or the 401 WQC;

C.            To inspect, at reasonable times, any monitoring or operational equipment or method; collection, treatment, pollution management or discharge facility or device; practices required by the Restoration Plan, and the 401 WQC; and

D.            To sample or monitor any discharge of pollutants or any restoration wetland areas at the Site.

 

9.             Respondent shall submit annual monitoring reports of the restoration wetland areas to IDEM by December 31 of each year until released from monitoring by IDEM as required by Order Paragraph 5E.  The reports shall include, but not be limited to, the following:

 

A.            Respondent’s IDEM-assigned project name(s) and identification number(s).

B.            As-built plans (required to be submitted in the first year's annual report).

C.            Discussion of methods or means used to determine compliance with the success criteria.

D.            Representative photographs of the restoration wetland areas and sampling points.

E.            Discussion of whether the wetland(s) is/are achieving each of the success criteria.

F.            Identification of any problems with meeting the success criteria.

G.           Recommendations for correcting any problems identified with meeting the success criteria.

 

10.         In the event that IDEM determines the wetland monitoring reports show the wetland has not been restored and/or is failing to meet success criteria, Respondent shall, within 15 days of receipt of notification from IDEM, submit a Corrective Action Plan to IDEM for review.  The Corrective Action Plan must include, at a minimum, the steps Respondent will take to ensure the wetland areas are fully restored including any corrective actions necessary such as grading, seeding, monitoring, and submittal of monitoring reports.

 

11.         Any land-disturbing activity of one acre or greater at the Site will require general permit coverage under 327 IAC 15-5, including constructing driveways, parking areas, or causing any further mechanical clearing.  Failure to comply with 327 IAC 15-5 shall subject the Respondent to further enforcement.

 

12.         Respondent, upon receipt of written notification from IDEM and the USACE, shall immediately implement the approved Restoration Plan and the 401 WQC and adhere to the milestone dates therein.  The approved Restoration Plan and the 401 WQC shall be incorporated into this Order and shall be deemed an enforceable part thereof.  Failure by Respondent to submit any plan by the specified date, or to meet any of the milestones in any approved plan, will subject Respondent to further enforcement action.

 

13.         All submittals required by this Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall be sent to:

 

Aletha Lenahan, Enforcement Case Manager

Indiana Department of Environmental Management

Surface Water, Operations & Enforcement Branch

Office of Water Quality – Mail Code 60-02W

100 North Senate Avenue, Room 1255

Indianapolis, IN 46204-2251

 

14.         Respondent is assessed a civil penalty of Twenty Five Thousand Dollars ($25,000).  Within thirty (30) days of the Effective Date, Respondent shall pay a portion of this penalty in the amount of Five Thousand Dollars ($5,000), which is the portion of penalty not offset by the SEP.  Said penalty amount shall be due and payable to the “Environmental Management Special Fund.”

 

In lieu of payment of the remaining civil penalty, Respondent shall perform and timely complete a SEP.  Respondent estimates that this SEP will cost Twenty Thousand Dollars ($20,000).

 

Within 10 days of completing this SEP, Respondent shall submit written notice and documentation to IDEM, which substantiates all actions taken, and all costs incurred with respect to the SEP.

 

15.         As a SEP, Respondent shall make a monetary contribution of Twenty Thousand Dollars ($20,000) to the nonprofit ACRES, Inc., ACRES Land Trust (ACRES), which is involved in land acquisitions and preservation of natural areas within its northeastern Indiana service area, all of which shall be designated to be used by ACRES, Inc. to acquire land, which will be held and managed by ACRES in perpetuity.  Respondent shall donate the money no later than 60 days from the Effective Date.

 

Implementation of this SEP will support the work done by ACRES to protect and preserve natural areas such as forests, wetlands, native grasslands, unique geologic formations, and habitats for plants and animals within the Eel River Watershed in northeastern Indiana, as well as improve water quality, and increase endangered species habitat.  The SEP will allow ACRES to permanently protect natural areas by guaranteeing that ACRES’ name will always remain on the deed, and the deeded land will never be developed or transferred out of ACRES Land Trust.

 

16.         In the event that Respondent does not complete the SEP within 60 days from the Effective Date, the full amount of the civil penalty as stated in Order Paragraph 14 above, plus interest established by IC 24-4.6-1-101 on the remaining amount, less the portion of the civil penalty Respondent has already paid, will be due within 10 days from Respondent's receipt of IDEM’s notice to pay.  Interest, at the rate established by IC 24-4.6-1-101, shall be calculated on the amount due from the date, which is 60 days after the Effective Date, until the full civil penalty is paid.

 

17.         In the event the terms and conditions of the following paragraphs are violated, IDEM may assess and Respondent shall pay the corresponding stipulated penalty.

 

Paragraph:

Violation:

Stipulated Penalty:

4

Failure to apply for ATF 401 WQC within the required timeframe.  

$250 per week late, or part thereof.

5

Failure to timely submit to IDEM a complete Restoration Plan.

$250 per week late, or part thereof.

6

Failure to record and provide a copy to IDEM of the Conservation Easement.

$500 per week late, or part thereof.

7

Failure to revise and resubmit the plan to IDEM in accordance with IDEM’s notice, if required.

$500 per week late, or part thereof.

7

Failure to submit a request and obtain approval for any change to an approved plan, prior to restarting restoration and/or mitigation work.

$500 per day late, or part thereof.

7

Failure to submit a plan or certification modification and obtain IDEM’s approval prior to starting restoration at the Site.

$500 per week late, or part thereof.

8

Failure to allow access to IDEM and/or its authorized representatives, and Respondent’s records, as required by Order Paragraph 5.

$500 per access denial incident.

9

Failure to submit annual monitoring reports of the restoration site to IDEM by December 31st of each year until released from monitoring by IDEM.

$500 per week late or part thereof.

10

Failure to submit a Corrective Action Plan to IDEM for review.

$500 per week late, or part thereof.

12

Failure to implement the approved Restoration Plan 401 WQC and/or Corrective Action Plan and adhere to the milestone dates therein.

$500 per week late, or part thereof.

 

18.           Stipulated penalties shall be due and payable no later than the 30th day after Respondent receives written notice that IDEM has determined a stipulated penalty is due, the 30th day being a “Due Date.”  IDEM may notify Respondent at any time that a stipulated penalty is due.  Failure to notify Respondent in writing in a timely manner of a stipulated penalty assessment shall not waive IDEM’s right to collect such stipulated penalty or preclude IDEM from seeking additional relief against Respondent for violation of this Agreed Order.  Neither assessment nor payment of stipulated penalties shall preclude IDEM from seeking additional relief against Respondent for a violation of this Agreed Order.  Such additional relief includes any remedies or sanctions available pursuant to Indiana law, including, but not limited to, civil penalties pursuant to IC 13-30-4.

 

19.           Civil and stipulated penalties are payable by check to the “Environmental Management Special Fund.”  Checks shall include the Case Number

2013-21465-Q of this action and shall be mailed to:

 

Office of Legal Counsel

Indiana Department of Environmental Management

IGCN, Room N1307

100 N. Senate Avenue

Indianapolis, IN 46204

 

20.           This Agreed Order shall apply to and be binding upon Respondent and its successors and assigns. Respondent’s signatories to this Agreed Order certify that they are fully authorized to execute this Agreed Order and legally bind the party they represent.  No change in ownership, corporate, or partnership status of Respondent shall in any way alter its status or responsibilities under this Agreed Order.

 

21.           In the event that the monies due to IDEM pursuant to this Agreed Order are not paid on or before their Due Date, Respondent shall pay interest on the unpaid balance and any accrued interest at the rate established by IC 24-4.6-1.  The interest shall be computed as having accrued from the Due Date until the date that Respondent pays any unpaid balance.  The interest shall continue to accrue on the first of each month until the civil penalty and any interest accrued are paid in full.  Such interest shall be payable to the Environmental Management Special Fund, and shall be payable to IDEM in the manner specified above.

 

22.           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.

 

23.           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.

 

24.           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 its obligation to comply with the requirements of its applicable permit or any applicable Federal or State law or regulation.

 

25.           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.

26.           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.

 

27.           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 EPA or any other agency or entity.

 

28.           This Agreed Order shall remain in effect until Respondent has complied with all terms and conditions of this Agreed Order and IDEM issues a Resolution of Case (close out) letter to Respondent.

 

TECHNICAL RECOMMENDATION:

RESPONDENT:

Department of Environmental Management

All American RV Resorts I, LLC

 

By:________________________

By:_________________________

Samantha K. Groce, Section Chief

 

Water Enforcement Section

Printed:______________________

Surface Water, Operations &

 

Enforcement Branch

Title:________________________

Office of Water Quality

 

Date:_______________________

Date:_______________________

 

 

 

 

COUNSEL FOR RESPONDENT:

 

 

By:______________________

 

 

Date:______________________

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS ______ DAY OF ________________________, 201__.

 

 

For the Commissioner:

 

Signed on May 17, 2018

Martha Clark Mettler

Assistant Commissioner

Office of Water Quality