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. 2015-22903-Q

 

)

 

boyd and company contruction, 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 Boyd and Company Construction, LLC (Respondent), which owns the property located at 1987 Troy Road, in Washington, Daviess 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.               On or about July 21, 2013, Respondent commenced construction and/or authorized construction of a building at the Site.  The construction activity consists of land disturbance, which occurred in order to complete construction of the building, expansion of an existing retention pond, and transporting fill material to/from an adjacent farmland, which Respondent also owns.  IDEM assigned the General Industrial Storm Water Permit No. INR10G738 to the Site, as required by the National Pollutant Discharge Elimination System (NPDES) Permit Program.

 

5.               Pursuant to IC 13-30-3-3, on August 18, 2015, IDEM issued a Notice of Violation via Certified Mail to Boyd and Company Construction, LLC.

 

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

 

7.               Pursuant to 327 Indiana Administrative Code (IAC) 15-5-2(a)(1-3), storm water run-off associated with construction activity, applies to all persons who do not obtain an individual NPDES permit under 327 IAC 15-2-6, who meet the general permit rule applicability requirement under 327 IAC 15-2-3, and are involved in construction activity, except operations that result in the land disturbance of less than one (1) acre of total land area as determined under subsection (h) and are not part of a larger common plan of development or sale.

 

Pursuant to 327 IAC 15-5-2(d)(1-3), the project site owner has responsibilities to complete a sufficient notice of intent letter (NOI), ensure that a sufficient construction plan (CP) is completed and submitted in accordance with section 6 of this rule, and ensure compliance with this rule during the construction activity; and implementation of the construction plan.

 

Pursuant to 327 IAC 15-5-2(d)(4-5), the project site owner has responsibilities to notify the department with a sufficient notice of termination letter, and ensure that all persons engaging in construction activities on a permitted project site comply with the applicable requirements of this rule and the approved construction plan.

 

Pursuant to 327 IAC 15-5-5, the information set forth in this rule must be submitted by the project site owner with a complete NOI under this rule.

 

Pursuant 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 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.  A copy of the completed NOI must also be submitted to all Soil Water Conservation Districts (SWCDs), or other entity designated by the department, where the land disturbing activities are to occur.  If the NOI is determined to be deficient, the project site owner must address the deficient items and submit an NOI to the commissioner, as specified by section 5 of this rule.

 

Based on an inspection conducted by Daviess County SWCD staff on December 8, 2014, and inspections conducted by IDEM’s representative on January 16, 2015, April 30, 2015, and August 31, 2015, it was determined that Respondent failed to submit the NOI to IDEM prior to initiating additional land disturbing activities at the Site that were beyond the scope of the original IDEM-approved construction project, and failed to submit a copy of the NOI to Daviess County SWCD where the land disturbing activities have occurred, in violation of 327 IAC 15-5-2(d), 327 IAC 15-5-5, and 327 IAC 15-5-6(a).

 

8.               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 section 2 of this rule, the following requirements must be met:

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 SWCD or other entity designated by the department for:

1)     Review and verification that the plan meets the requirements of the rule; or

2)     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.

 

Pursuant to 327 IAC 15-5-6.5(a), for project sites that do not meet the criteria in subsection (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).

 

Based on an inspection conducted by Daviess County SWCD staff on December 8, 2014, and inspections conducted by IDEM’s representative on January 16, 2015, April 30, 2015, and August 31, 2015, it was determined that Respondent failed to develop and submit a CP for the additional construction at the Site beyond the original scope of the project, and failed to send a CP to Daviess County SWCD prior to commencing the additional land disturbing activities at the Site, each in violation of 327 IAC 15-5-6(b)(1) and 327 IAC 15-5-6.5(a).

 

9.               Pursuant to 327 IAC 15-5-6(b)(2), if the CP required by subdivision (1) is determined to be deficient, 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.  If notification of a deficient plan is received after the review period outlined in subdivision (3) and following commencement of construction activities, the plans must be modified to meet the requirements of the rule and resubmitted within fourteen (14) days of receipt of the notification of deficient plans.

 

Based on an inspection conducted by Daviess County SWCD staff on December 8, 2014, and inspections conducted by IDEM’s representative on January 16, 2015, April 30, 2015, and August 31, 2015, it was determined that Respondent initiated land disturbance prior to any CP submission, and continued to extend the scope and extent of land disturbing activities following IDEM’s notifications of plan deficiencies on December 8, 2014, January 16, 2015, April 30, 2015, and August 31, 2015.  Therefore, as of August 31, 2015, Respondent had not submitted a CP sufficient to meet the requirements of the rule, and continued to expand the scope and extent of land disturbance, in violation of 327 IAC 15-5-6(b)(2).

 

10.           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 CP and sufficient to satisfy 327 IAC 15-5-7(b).

 

Pursuant to 327 IAC 15-5-7(b), a project site owner shall, at least meet the requirements set forth in this section.

 

Pursuant to 327 IAC 15-5-7(b)(6), the project site owner shall post a notice near the main entrance of the project site.

 

Based on inspections conducted by IDEM’s representative on June 20, 2014, January 16, 2015, and April 30, 2015, and an inspection conducted by Daviess County SWCD staff on December 8, 2014, it was observed that Respondent failed to post a notice near the main entrance of the project Site throughout the construction activities at the Site, in violation of 327 IAC 15-5-7(b)(6).

 

11.           Pursuant to 327 IAC 15-5-7(b)(1), a project site 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.

 

Pursuant to 327 IAC 2-1-6(a)(1), all surface waters at all times and at all places, including waters within 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 do any of the following:

 

A.              Will settle to form putrescent or otherwise objectionable deposits;

B.              Are in amounts sufficient to be unsightly or deleterious;

C.              Produce color, visible oil sheen, odor, or other conditions in such degree as to create a nuisance;

D.              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.              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 otherwise impair the designated uses.

 

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 in any form that causes or would cause pollution that violates or would violate rules, standards, or discharge or emission requirements adopted by the appropriate board under the environmental management laws.

 

Based on inspections conducted by IDEM staff on August 9, 2013, October 16, 2013, and December 23, 2013, it was observed that Respondent allowed sediment-laden water to leave the Site on the south and west ends of the Site, which migrated to an adjacent farm field.  Respondent also allowed sediment to leave the Site from several locations on the north and west ends of the Site, which migrated to the unnamed tributary of Veale Creek, in violation of 327 IAC 15-5-7(b)(1) and 327 IAC 2-1-6(a)(1), and thus in violation of IC 13-30-2-1.

 

12.           Pursuant to 327 IAC 15-5-7(b)(2), a project site owner shall, at least, meet the following requirement:  Appropriate measures shall be implemented to minimize or eliminate wastes or unused building materials, including garbage, debris, cleaning wastes, wastewater, concrete truck washout, and other substances from being carried from a project site by run-off or wind.  Identification of areas where concrete truck washout is permissible must be clearly posted at appropriate areas of the site.  Wastes and unused building materials shall be managed and disposed of in accordance with all applicable statutes and regulations.

 

Based on inspections conducted by IDEM staff on October 16, 2013, December 23, 2013, March 20, 2014, and January 16, 2015, Respondent failed to construct a concrete truck washout at the Site.  It was observed that the concrete leachate had been deposited upon the ground.  Respondent failed to construct the concrete truck washout, failed to contain the concrete leachate, and failed to prevent it from being deposited upon the ground, all of which are in violation of 327 IAC 15-5-7(b)(2).

 

13.           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 an erosion or pollutant problem to the adjacent property owner.

 

Based on Site inspections conducted by IDEM and Daviess County SWCD staff from August 9, 2013 through August 31, 2015, it observed that Respondent failed to take appropriate action to manage run-off and prevent the discharge of pollutants, principally sediment to an adjacent property.  Respondent left areas without vegetation for more than 15 days at the south and west ends of the property that caused sediment deposition in culverts and migration to an adjacent farm field.  In addition, gullies formed along the silt fences positioned on the hill and provided channel run-off from the slope, silt fences overtopped with sediment, and the side slopes around the retention basin have not been protected with stabilization, in violation of 327 IAC 15-5-7(b)(13).

 

14.           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.

 

During inspections on August 9, 2013, October 16, 2013, December 23, 2013, March 20, 2014, June 20, 2014, January 16, 2015, April 30, 2015, and August 31, 2015, and a records review conducted by IDEM staff, it was determined that Respondent completed its self-monitoring Erosion and Sediment Control Inspection reports for the project on January 1, 11, 18, and 25, 2014, and February 1, 8, 15, and 22, 2014.  Respondent left the Pollution Control Measure Checklist blank on its Erosion and Sediment Control Inspection report dated March 1, 2014, and was therefore, deemed incomplete.  From on or about July 21, 2013 to August 31, 2015, based on violations noted in Respondent’s inspection reports, Respondent failed to employ a trained individual that is qualified to implement a self-monitoring program at the Site in order to meet all of the above provisions of subdivision (18) of this rule, in violation of 327 IAC 15-5-7(b)(18).

 

15.           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.  In addition to addressing the violations cited in Paragraphs 7 through 14 of the Findings of Fact above, this Agreed Order also addresses any additional violations of these same rules that may have occurred subsequent to the issuance of the Notice of Violation and prior to the Effective Date.

 

2.               On December 4, 2015, IDEM issued the Notice of Sufficiency (Permit No. INR10L087), which addresses the violations cited in Paragraphs 7 through 9 of the Findings of Fact above, which is in accordance with 327 IAC 15-5-2(d),

327 IAC 15-5-5, and 327 IAC 15-5-6(a).

 

3.               Immediately upon the Effective Date, Respondent shall continue to monitor and maintain corrective erosion and sediment measures at the Site until all provisions of this Order have been met, and the Site has been deemed by IDEM to be permanently stabilized, in accordance with 327 IAC 15-5.  Respondent shall not initiate any further land disturbing activities at the Site unless Respondent completes the following requirements:

 

A.              Submit a complete revised CP, including a Storm Water Pollution Prevention Plan (SWP3) that meets the minimum requirements of 327 IAC 15-5 and addresses current site conditions, to IDEM, as required by 327 IAC 15-5-5, 327 IAC 15-5-6, 327 IAC 15-5-6.5, and 327 IAC 15-5-7, and

B.              Submit a complete, revised, and approvable NOI to IDEM that contains all the information required pursuant to 327 IAC 15-3, 327 IAC 15-4, and 327 IAC 15-5-5.

 

Respondent shall implement the erosion and sediment control measures contained in the approved revised CP for the Site and any other necessary erosion and sediment control measures.

 

For the purposes of this Agreed Order, a 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, as required by 327 IAC 15-5-6.5.  A SWP3 is a part of the CP, pursuant to 327 IAC 15-5-4(5) and 327 IAC 15-5-4(35).

 

4.               The revised CP required by Order Paragraph 3.B. shall include a detailed description of corrective actions that Respondent shall take to ensure implementation of storm water quality measures for the project Site, and all measures necessary to adequately prevent the discharge of polluted storm water run-off.  The revised CP shall include the following:

 

A.              The requirements for a CP as identified in 327 IAC 15-5-6.5 and any other applicable modifications as required by IDEM; and

B.              A response to all deficiencies noted in previous on-site evaluations, inspection reports, and comments from past technical reviews provided by IDEM.

 

5.               Immediately upon the Effective Date, Respondent shall implement an adequate self-monitoring program as required by 327 IAC 15-5-7(b)(18), including assuring that a trained individual performs a written evaluation of the project site at a minimum of one time per week, and by the end of the next business day following each measurable storm event, 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.

6.               In the event that deficiencies are found during the inspections of the Site conducted pursuant to Order Paragraph 5 above, Respondent shall immediately take all actions necessary to correct the deficiencies.  Such actions may include, but are not necessarily limited to, correction of any installation inadequacies, implementation of necessary maintenance actions to ensure proper function of the control measures, and installation of additional control measures to address erosion and sediment control site needs as necessary.

 

7.               Respondent shall maintain records of the inspections conducted pursuant to Order Paragraph 5 above and corrective actions taken pursuant to Order Paragraph 5 above.  Respondent shall make the records available for inspection and copying by representatives of IDEM, and Daviess County SWCD.  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 of any deficiencies that were found; and

E.              A description of the corrective actions taken as a result of deficiencies found during the inspection, and the date of completion for the corrective actions.

 

8.               In the event the revised NOI, revised CP, and/or supporting information, submitted in accordance with Order Paragraph 3 above, do not satisfy IDEM requirements pursuant to 327 IAC 15-5-6(b), then Respondent shall revise and resubmit an additional NOI, CP, and/or supporting information to meet IDEM requirements by the deadline indicated in IDEM’s notification.  Should the additional revised CP not be complete, or should the modifications proposed not meet IDEM requirements, Respondent shall be subject to stipulated penalties, as described in Order Paragraph 17 of this Agreed Order.

 

9.               Immediately upon receipt of verification that the revised CP satisfies IDEM requirements, Respondent shall implement the erosion and sediment control measures contained in the revised 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.

 

All measures shall be properly constructed, adequately sized and located to manage run-off, and to prevent off-site sedimentation or discharges of other pollutants from the site.  This effort should include sediment basins and sediment traps as 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 from the IDEM Storm Water Program and can be accessed via the internet at http://www.in.gov/idem/4899.htm.  Respondent will be deemed to have satisfied the requirements of this paragraph when IDEM verifies that adequate storm water management principles and erosion and sediment control measures have been implemented and Respondent has no “unsatisfactory” inspection ratings from IDEM or the local SWCD for one (1) year or until the project termination conditions of 327 IAC 15-5-8 have been met at the Site and a notice of termination letter has been submitted and accepted.

 

10.           Within 15 days of receipt of verification that the revised CP satisfies IDEM requirements, Respondent shall provide written notification to all parties with access to the Site, including contractors and subcontractors, of the requirements contained in the CP.

 

11.           Within 30 days of receipt of verification that the revised CP satisfies IDEM requirements, Respondent shall submit to IDEM a copy of the notification required pursuant to Order Paragraph 10 above and a statement certifying that the notification was provided to all parties with access to the Site.

12.           Within 10 days of the completion of the milestone dates above, Respondent shall submit documentation of completion of each milestone to IDEM’s Office of Enforcement at the address in Order Paragraph 15.

 

13.           The requirements of Order Paragraphs 3 through 12 above shall remain in effect until:

 

A.              Respondent submits the Notice of Termination (NOT) letter of construction activity, pursuant to 327 IAC 15-5-11 for the Site, and

B.              A representative of IDEM approves the adequacy of the remaining permanent storm water measures, in accordance with 327 IAC 15-5-8(b).

 

14.           The above noted plan(s) are subject to IDEM review and a determination of adequacy.  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.  Respondent shall not commence any work until IDEM determines the plan(s) meet the minimum requirements of 327 IAC 15-5.

 

Upon receipt of written notification from IDEM, Respondent shall immediately implement the plan(s) and adhere to the milestone dates therein.  The final plan(s) shall be incorporated into the Agreed 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 the final plan, will subject Respondent to stipulated penalties as described below.

 

15.           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

 

16.           Respondent is assessed and agrees to pay a civil penalty of Thirty-Five Thousand, Two Hundred Dollars ($35,200).  The first payment of Four Thousand, Four Hundred Dollars ($4,400) shall be due and payable to the “Environmental Management Special Fund” within 30 days of the Effective Date, the 30th day being a “Due Date.”  The remaining seven (7) equal and consecutive payments of Four Thousand, Four Hundred Dollars ($4,400) shall be made by the 10th day of each of the seven (7) remaining months that follow the initial payment.  Interest shall accrue on any amount past due under this schedule or remaining after the eight (8)-month payment period at a rate established by IC 24-4.6-1-101.  The interest shall continue to accrue until the civil penalty is paid in full.

 

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

3

Failure to monitor and maintain corrective erosion and sediment measures until the Site has been deemed by IDEM to be permanently stabilized.

$500 per violation

3

Failure to submit a NOI and revised CP, as required prior to commencing further land disturbing activities at the Site.

$500 per week late, or part thereof

4

Failure to implement the revised CP and/or take appropriate corrective action, including the selection and implementation of additional/alternative erosion and sediment control measures beyond those specified in the SWP3 necessary to adequately prevent the discharge of polluted storm water run-off.

$250 per violation

5

Failure to implement an adequate self-monitoring program.

$250 per violation

6

Failure to take all actions necessary to correct deficiencies noted during Site inspections.

$500 per violation

7

Failure to maintain required records at the Site, and/or failure to make required records available to IDEM and Daviess County SWCD.

$500 per violation

8

Failure to timely submit an additional NOI, CP and/or supporting documentation to IDEM’s requirements.

$250 per week late, or part thereof

9

Failure to timely implement the erosion and sediment control measures contained in the revised CP for the Site and any other erosion and sediment control measures necessary to comply with the rule.

$250 per week late, or part thereof

9

Unsatisfactory rating for erosion and sediment control measures during inspections conducted by IDEM and/or Daviess County SWCD.

$250 per violation

11

Failure to timely submit certification statement and copy of notice provided pursuant to Order Paragraph 10 to IDEM.

$250 per week late, or part thereof

12

Failure to submit documentation of completion of milestones to IDEM, within the required time period.

$250 per week late, or part thereof

13

Failure to timely submit NOT letter to IDEM, as required.

$250 per week late, or part thereof

14

Failure to implement the plan(s) and/or adhere to the milestone dates.

$250 per violation

 

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 2015-22903-Q of this action and shall be mailed to:

 

Indiana Department of Environmental Management

Cashier – Mail Code 50-10C

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

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 Notice of Violation.

 

27.           Nothing in this Agreed Order shall prevent IDEM [or anyone acting on its behalf] from communicating with the United States Environmental Protection Agency (US 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 US 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 (Case Close Out) letter to Respondent.

 

REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.

 

TECHNICAL RECOMMENDATION:

RESPONDENT:

 

Department of Environmental Management

Boyd and Company Construction, LLC

 

 

 

By: ____________________________

By:_________________________

 

Brian Wolf, Branch Chief

 

 

Surface Water, Operations &

Printed:______________________

 

Enforcement Branch

 

 

Office of Water Quality

Title:________________________

 

 

 

Date:___________________________

Date: _______________________

 

 

 

COUNSEL FOR RESPONDENT:

 

 

 

 

By:_________________________

 

 

 

 

Date:________________________

 

 

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

 

MANAGEMENT THIS ______ DAY OF ________________________, 20___.

 

 

 

 

For the Commissioner:

 

 

 

 

 

Signed on June 27, 2016

 

 

Martha Clark Mettler

 

 

Assistant Commissioner

 

 

Office of Water Quality