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STATE
OF INDIANA |
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BEFORE
THE INDIANA DEPARTMENT |
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COMMISSIONER
OF THE DEPARTMENT Complainant, v. Sailing
Rendezvous, Inc, 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 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.
Sailing
Rendezvous Inc. (Respondent) owns and/or operates a residential single-family
development located at 9303 East 1100 North in North Syracuse, Kosciusko County
Indiana (the Site).
3.
Pursuant
to 327 IAC 15-2-2, IDEM is authorized to regulate stormwater discharges
associated with construction activity under an NPDES general permit. IDEM
issued the Construction Stormwater General Permit (CSGP) on December 9, 2021.
4.
Respondent
submitted a Notice of Intent (NOI) for the discharge of stormwater associated
with construction activity on the Site on September 26, 2022, and was issued a
Notice of Sufficiency (NOS) on October 14, 2022. Respondent was authorized by
National Pollutant Discharge Elimination System (NPDES) Permit Number INRA10575
(the Permit) to discharge stormwater in compliance with the requirements of the
Construction Stormwater General Permit (CSGP). The Permit was issued on
September 26, 2022, and will expire on September 25, 2027. Respondent is authorized
by the Permit to discharge stormwater associated with construction activity at
the Site in compliance with the requirements of the CSGP, any local stormwater
permits, and following the measures identified in Respondent’s construction
plan.
5.
IDEM
has jurisdiction over the parties and the subject matter of this action
pursuant to IC 13-30-3.
6.
Pursuant
to IC 13-30-3-3, IDEM issued a Notice of Violation (NOV) via Certified
Mail/personal service to:
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Michael DeWitt, President and Registered
Agent |
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Sailing Rendezvous, Inc |
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9422 East 11000 North |
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Syracuse, IN 46567 |
7.
The
violations listed below do not include the violations documented by IDEM at Lot
1 of the Site. The violations documented at Lot 1 are being addressed in a separate
enforcement action against the individual lot operator.
8.
During
investigations conducted by a representative of IDEM, violations were found, as
described below.
9.
Pursuant
to 327 IAC 2-1-6(a)(1), all surface waters, including waters within a mixing
zone, must be 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: Settle to form
putrescent or otherwise objectionable deposits, Occur in amounts sufficient to
be unsightly or deleterious, or Produce a color; visible oil sheen; odor; or other
conditions to an extent that creates a nuisance.
During
an inspection on February 23, 2023, of the Site, IDEM staff observed discharges
associated with project activities into waters of the state in violation of 327
IAC 2-1-6(a)(1).
10.
Pursuant
to CSGP Section 5.3(a), the NOI must be submitted at least 48 hours prior to
any land disturbance or discharge occurrence.
During
inspections on August 19, 2022, and September 15, 2022, of the Site, IDEM staff
documented that Respondent failed to submit a NOI prior to initiation of
land-disturbing activities, in violation of CSGP Section 5.3(a). Respondent submitted
the NOI to IDEM on September 26, 2022.
11.
Pursuant
to CSGP Section 4.1, a construction plan that includes a stormwater pollution prevention plan (SWP3) must be
developed for both the construction and post-construction phases of the
project.
During
inspections on August 19, 2022, and September 15, 2022, of the Site, IDEM staff
documented that Respondent failed to develop and submit a Construction Plan,
including a SWP3 prior to the initiation of land disturbance in violation of CSGP
Section 4.1 and Section 4.2(a)(1). Respondent submitted the NOI on September
26, 2022, and the SWP3 on September 21, 2022.
12.
Pursuant
to CSGP Section 3.1(a)(1), sediment-laden water which otherwise would flow from
the project site shall be treated by erosion and sediment control measures
appropriate to minimize sedimentation to receiving waters and adjacent properties.
During
the inspections on August 19, 2022, September 15, 2022, October 14, 2022,
December 2, 2022, January 17, 2023, and February 23, 2023, of the Site, IDEM staff
observed and documented that Respondent failed to ensure erosion and sediment
control measures were appropriate to minimize off-site sedimentation in violation
of CSGP Section 3.1(a)(1).
13.
Pursuant
to CSGP Section 3.2(a)(5), collected run-off leaving the project site must be
either discharged directly into a well-defined, stable receiving conveyance or
diffused and released without causing erosion at the point of discharge.
Pursuant
to CSGP Section 3.2(a)(6), conveyance systems must be adequately protected so
that erosion at the outlet or in the receiving channel is unlikely.
During
an inspection on February 23, 2023, IDEM staff observed and documented stormwater
run-off from the Site causing erosion at the point of discharge and unprotected
conveyance systems, each in violation of CSGP Section 3.2(a)(5) and Section 3.2(a)(6).
14.
Pursuant
to CSGP Section 3.3(a)(4), Respondent must provide stable construction site
access measures at all points of construction traffic ingress and egress to the
project site. Additionally, where the selected measure is not effective, an
alternative measure or additional controls must be utilized to minimize
tracking.
During
inspections on January 17, 2023, and February 23, 2023, IDEM staff documented Respondent’s
failure to provide and/or maintain a stable construction site access measure at
all points of ingress and egress, in violation of CSGP Section 3.3(a)(4).
15.
Pursuant
to CSGP Section 3.3(a)(5), during the period of construction activities, all stormwater
management measures necessary to meet the requirements of this permit must be
maintained. Alternative measures must be selected and implemented, as necessary.
During
inspections on August 19, 2022, September 15, 2022, October 14, 2022, December
2, 2022, and February 23, 2023, IDEM staff documented Respondent’s failure to
maintain stormwater management measures necessary to meet the requirements of
the CSGP, in violation of CSGP Section 3.3(a)(5).
16.
Pursuant
to CSGP Section 3.3(a)(13)(A), a notice must be posted near the main entrance
of the project site or at a publicly accessible location.
During
inspections on August 19, 2022, September 15, 2022, October 14, 2022, December
2, 2022, and February 23, 2023, IDEM staff documented Respondent’s failure to
post the required information, in violation of CSGP Section 3.3(a)(13)(A).
17.
Pursuant
to CSGP Section 3.4(a)(1) Respondent must initiate stabilization by the end of the
seventh day the area is left idle. The stabilization activity must be completed
within 14 days after initiation.
During
inspections on August 19, 2022, September 15, 2022, October 14, 2022, December
2, 2022, January 17, 2023, and February 23, 2023, IDEM staff documented Respondent’s
failure to implement stabilization of idle areas as required by the CSGP, in
violation of CSGP Section 3.4(a)(1).
18.
Pursuant
to CSGP Section 3.6(a) Respondent shall monitor and manage project construction
and stormwater activities through administration of a self-monitoring program
(SMP) that includes:
A.
A written
evaluation of the entire project site, with the exception of
those areas that are considered unsafe. The evaluation must be performed by a
trained individual and completed as required by this section.
B.
A
complete written evaluation report which includes the information required by
this section.
C.
Maintaining
the SMP reports that the Site or at an easily accessible location.
D.
Providing
all reports for the Site to the inspecting authority within forty-eight (48)
hours of a request.
During
inspections on January 17, 2023, and February 23, 2023, IDEM staff documented Respondent’s
failure to monitor and manage project construction and stormwater activities
through a SMP, failure to provide the self-monitoring reports within 48 hours
of request, and failure to maintain SMP reports at the Site or at an easily
accessible location in violation of CSGP Section 3.6(a)(1-4).
19.
Pursuant
to CSGP Section 3.8(a), implementation and maintenance of erosion and sediment
control measures on individual lots within a permitted site must be in
accordance with the overall project construction plan and sufficient to satisfy
the requirements of CSGP Section 3.8(a)(2), including:
(B) installation and maintenance of a stable
construction site access, unless the site is to be
accessed solely from impervious or non-erosive areas.
(C) Installation and maintenance of appropriate
erosion and sediment control measures prior to land disturbance.
During
inspections on August 19, 2022, September 15, 2022, October 14, 2022, December
2, 2022, and February 23, 2023, IDEM staff documented Respondent’s failure to
implement and maintain erosion and sediment control measures on individual lot Lot 7, which is owned and operated by Respondent, within the
permitted Site, in violation of CSGP Section 3.8(a) and 3.8(a)(2)(C).
During
inspections on January 17, 2023, and February 23, 2023, IDEM staff documented Respondent’s
failure to provide adequate construction site access per the conditions listed in
the CSGP at the County Road 1100 Lot 7 access point, in violation of CSGP section
3.8(a)(2)(B).
20.
Orders
of the Commissioner are subject to administrative review by the Office of Environmental
Adjudication under IC 4-21.5; however, in recognition of the settlement
reached, Respondent acknowledges notice of this right and 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 9 through 19 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 NOV
and prior to the Effective Date.
2.
Respondent
shall comply with rules and statutes listed in the findings above at issue.
3.
Respondent
shall maintain compliance with the applicable provisions of the CSGP Sections: 5.3(a),
4.1, 4.2(a)(1), 3.1(a)(1), 3.2(a)(5), 3.2(a)(6), 3.3(a)(4), 3.3(a)(13)(A), 3.4(a)(1),
3.6(a)(1-4), and 3.8(a).
4.
Respondent
is responsible for compliance with the Permit and is required to install appropriate
erosion and sediment control measures necessary to comply with CSGP Section
3.0. The measures must be implemented in accordance with the construction plans
and sufficient to satisfy subsection (b). Appropriate measures must be installed:
a.
To
prevent sediment from leaving the site and entering or threatening to enter
waters of the state.
b.
In
accordance with the self-monitoring program as required by Section 3.6(a)(2),
Section 3.6(F) and Section 3.6(G).
c.
As
directed by a regulatory inspection that includes established timelines to
achieve specific corrective action. The corrective action will require action
within 48 hours, up to seven (7) days.
5.
Respondent
shall, upon the Effective Date, implement a self-monitoring program as required
by CSGP Section 3.6(a), 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 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 CGSP Section 3.0 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 within a 24-hour period.
6.
In
the event that deficiencies are found during the inspections
of the Site conducted pursuant to Order Paragraph 5 above, or during
inspections conducted by IDEM, Respondent shall immediately take all actions
necessary to correct the deficiencies. Such actions may include, but are not
limited to, stabilization of unvegetated areas of the Site that are idle or are
scheduled to be left inactive for seven (7) days, maintenance of sediment control
measures, removal of construction and other debris, proper storage and handling
of materials, and installation of additional erosion and sediment control
measures as required to minimize sediment impacts.
7.
Respondent
shall maintain and provide to IDEM upon request records of the inspections
conducted pursuant to Order Paragraph 5 above and corrective actions taken
pursuant to Order Paragraph 6 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.
8.
Respondent
shall make the records required pursuant to Order Paragraph 8 above available
for inspection and copying by representatives of IDEM, and the Soil and water
conservation District (SWCD).
9.
The
requirements of Order Paragraphs 4 through 8 shall remain in effect until Respondent
submits notification of termination of construction activity pursuant to CGSP
Section 6.0 for the Site and a representative of IDEM evaluates the project
site to determine if eligibility for termination has been met in accordance with
CGSP Section 6.0.
10.
All
submittals required by this Agreed Order, unless Respondent is notified otherwise
in writing by IDEM, shall be sent to:
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Grant
Chaddock, Enforcement Case Manager |
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Office
of Water Quality – IGCN 1255 |
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Indiana
Department of Environmental Management 100
North Senate Avenue |
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Indianapolis,
IN 46204-2251 |
In the event that
Respondent does not complete the SEP within 30 days of the Effective Date, the
full amount of the civil penalty as stated in paragraph 11 above, plus interest
established by IC 24-4.6-1-101 on the remaining amount, will be due within
fifteen 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
thirty days after the Effective Date until the full civil penalty is paid.
12.
In
the event the terms and conditions of the following paragraphs are violated,
IDEM may assess and Respondent shall pay the
corresponding stipulated penalty:
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Paragraph |
Violation |
Stipulated
Penalty |
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4 |
Failure
to implement the erosion and sediment control measures contained in the CSGP
and any other erosion and sediment control measures necessary to comply with
the requirements of Paragraph 4a through 4c. |
$500
per week late |
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5 |
Failure
to implement a self-monitoring program that meets the requirements of CSGP
Section 3.6. |
$500
per violation |
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6 |
Failure
to immediately take all actions necessary to correct deficiencies found during
Site inspections. |
$500
per violation |
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7, 8 |
Failure
to maintain and/or provide adequate records as required |
$500
per violation |
13.
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.
14.
This
Agreed Order shall apply to and be binding upon Respondent, 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.
15.
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.
16.
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.
17.
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.
18.
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 permits or any applicable Federal or State law
or regulation.
19.
Complainant
does not, by his 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.
20.
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.
21.
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 the US EPA or any other agency or entity.
22.
This
Agreed Order shall remain in effect until Respondent has complied with the terms
and conditions of this Agreed Order and IDEM issues a Resolution of Case (close
out) letter to Respondent.
REMAINDER OF PAGE INTENTIONALLY LEFT
BLANK.
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TECHNICAL
RECOMMENDATION: Department of
Environmental Management |
RESPONDENT: Sailing
Rendezvous Inc. |
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Amari Farren,
Chief |
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Water Enforcement
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Office of
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Date: |
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COUNSEL
FOR RESPONDENT: |
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By: |
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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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DAY OF |
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, 20__. |
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For the
Commissioner: |
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Signed on
July 20, 2023 |
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Martha
Clark Mettler |
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Assistant
Commissioner |
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Office of
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