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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. MONGOLD
HOMES LLC, Respondents. |
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AGREED ORDER
Complainant and Respondents 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 Respondents 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.
Mongold
Homes LLC (Respondents) owns and/or operates a residential subdivision known as
the Skippers Ridge Subdivision Section 1 located near IN-62, north of the
interchange with Jersey Ave, and across from Charleston State Park (Latitude: 38.45087,
Longitude: -85.64348) in Charlestown, Clark 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.
Respondents
submitted a Notice of Intent (NOI) for the discharge of stormwater associated
with construction activity on the Site on February 9, 2023, and was issued a
Notice of Sufficiency (NOS) on February 9, 2023. Respondents are authorized by National Pollutant Discharge Elimination System (NPDES)
General Permit Number INRA11248 (the Permit) to discharge stormwater in
compliance with the requirements of the CSGP. The Permit was issued on February
9, 2023, and will expire on February 8, 2028. Respondents are 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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Charity
Mongold, Owner |
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Charity
Mongold, Registered Agent |
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Mongold Homes
LLC. |
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Mongold Homes
LLC |
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150 Hanger
Avenue |
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1303 Chapel
Creek Ct. |
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Sellersburg,
IN 47172 |
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New Albany,
IN 47150 |
7.
During
investigations conducted by a representative of IDEM and Clark County Soil and
Water Conservation District (SWCD), violations were found, as described below.
8.
Pursuant
to IC 13-18-4-5, a person may not: (1) throw, run, drain, or otherwise dispose;
or (2) cause, permit, or suffer to be thrown, run, drained, allowed to seep, or
otherwise disposed; into any of the streams or waters of Indiana any organic or
inorganic matter that causes or contributes to a polluted condition of any of
the streams or waters of Indiana.
Pursuant
to IC 13-30-2-1(1), it is unlawful for any person to discharge, emit, cause, or
allow any contaminant or waste, including any noxious odor, either alone or in
combination with contaminants from other sources in 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.
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:
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; or
d.
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; and are in amounts
sufficient to be acutely toxic to, or to otherwise severely injure or kill
aquatic life, other animals, plants, or humans.
During
inspections on February 28, 2023, April 6, 2023, July 17, 2023, and September
5, 2023, of the Site, IDEM staff observed discharges of sediment associated
with project activities at the Site into Collins Run, which is a water of the
state, in violation of 327 IAC 2-1-6(a)(1).
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 in section 1.8 of this rule, is
prohibited unless in conformity with a valid NPDES permit obtained prior to the
discharge.
Pursuant
to 327 IAC 15-2-5(a), a person seeking to obtain coverage under a general
permit shall submit an NOI in accordance with the requirements of the
applicable general permit.
Pursuant
to 327 IAC 15-2-5(b), an NOI shall be submitted to the commissioner by the time
specified in the applicable general permit.
Pursuant
to Section 5.3(a) of the CSGP, for a new project, the NOI must be submitted at
least 48 hours prior to any land disturbance, or a discharge occurs.
During
inspections on July 9, 2021, and May 23, 2022, of the Site, Clark County Soil
and Water Conservation District (SWCD), staff documented that Respondents had
initiated land-disturbing activities.
IDEM records indicate Respondents did not submit the NOI to IDEM until
February 9, 2023. The initiation of land disturbing activities prior to
submittal of the NOI was in violation of 327 IAC 5-2-2, 327 IAC 15-2-5(a), 327
IAC 15-2-5(b), and CSGP Section 5.3(a).
10.
Pursuant to Section 3.0(b) of the CSGP, all
stormwater management measures, including erosion and sediment control measures
and post-construction measures must be implemented in accordance with the
permit and sufficient to satisfy Section 3.1 through Section 3.9 of the CSGP.
During
inspections on July 9, 2021, May 23, 2022, February 28, 2023, April 6, 2023,
July 17, 2023, and September 5, 2023, of the Site, IDEM staff and/or SWCD staff
observed and documented that Respondents failed to ensure erosion and sediment
control measures were implemented in accordance with the construction plan and
sufficient to satisfy the requirements of the CSGP, in violation of Section
3.0(b) of the CSGP.
11.
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
inspections on July 9, 2021, May 23, 2022, February 28, 2023, April 6, 2023,
July 17, 2023, and September 5, 2023, of the Site, IDEM staff and/or SWCD staff
observed and documented that Respondents failed to ensure erosion and sediment
control measures were appropriate to minimize off-site sedimentation in
violation of CSGP Section 3.1(a)(1).
12.
Pursuant
to CSGP Section 3.4(a)(1), Respondents 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 July 9, 2021, May 23, 2022, February 28, 2023, April 6, 2023,
July 17, 2023, and September 5, 2023, IDEM staff and/or SWCD staff documented Respondents
failed to implement stabilization of idle areas as required by the CSGP, in
violation of CSGP Section 3.4(a)(1).
13.
Pursuant
to CSGP Section 3.6(a), Respondents shall monitor and manage project
construction and stormwater activities through administration of a
self-monitoring program (SMP) that includes:
1)
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.
2)
A
complete written evaluation report which includes the information required by
items A through G of this section.
3)
Maintaining
the SMP reports at the Site or at an easily accessible location.
4)
Providing
all reports for the Site to the inspecting authority within forty-eight (48)
hours of a request.
During
inspections on February 28, 2023, April 6, 2023, July 17, 2023, and September
5, 2023, IDEM staff documented Respondents failed to monitor and manage project
construction and stormwater activities through a SMP, failed to provide the
self-monitoring reports within 48 hours of a request, and failed to maintain
SMP reports at the Site or at an easily accessible location, each in violation
of CSGP Section 3.6(a)(1-4).
14.
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, Respondents 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 Respondents. This Agreed Order shall have no force or
effect until the Effective Date. In
addition to addressing the violations cited in Paragraphs 8 through 13 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.
Respondents
shall comply with rules and statutes listed in the findings above at issue.
3.
Respondents
shall maintain compliance with the applicable provisions of the CSGP.
4.
Within
30 days for the Effective Date, Respondents shall 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.
Respondents
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, Respondents 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.
Respondents
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.
Respondents
shall make the records required pursuant to Order Paragraph 7 above available
for inspection and copying by representatives of IDEM, and SWCD.
9.
The
requirements of Order Paragraphs 4 through 8 shall remain in effect until Respondents
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 Respondents are notified
otherwise in writing by IDEM, shall be sent to:
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Eunice Okhifo, 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 |
11.
Respondent
is assessed and agrees to pay a civil penalty of Seven Thousand Eight Hundred Dollars
($7,800). Said penalty amount shall be paid in six (6) consecutive and equal
monthly payments. Respondent shall pay the first
payment in the amount of One Thousand Three Hundred Dollars ($1,300) by the due
date printed on the invoice, as attached.
The
remaining amount of Six Thousand Five Hundred Dollars ($6,500) shall be due in
the following five (5) consecutive monthly payments of $1,300. Respondent shall pay
the monthly payments by the due date printed on each invoice.
Civil
and stipulated penalties are payable to the “Environmental Management Special
Fund” by mail, phone, or online following the instructions below:
Mail:
Civil
and stipulated penalties are payable by check to the “Environmental Management
Special Fund.” Checks shall include the Case Number 2023-29810-Q
of this action and shall be mailed to:
Indiana
Department of Environmental Management
Accounts
Receivable
IGCN,
Room 1340
100
North Senate Avenue
Indianapolis,
IN 46204
Online:
Accounts
Receivable is accepting payments online by e-Check, Master Card, Visa, or
Discover. Please visit www.IN.gov/IDEM. Under Online Services, click Online Payment
options and follow the prompts. A
processing fee of $1 plus 1.99% will be charged for credit card payments. A processing fee of $1 will be charged for
e-Check payments. The
Case Number 2023-29810-Q of this action is required to complete the
process.
Phone:
Accounts
Receivable also accepts payments by phone at 317-234-3099. Follow the instructions for Master Card,
Visa, or Discover payments. A processing
fee of $1 plus 1.99% will be charged for credit card payments. A processing fee of $1 will be charged for
e-Check payments. The
Case Number 2023-29810-Q is required to complete the process.
12.
In
the event the terms and conditions of the following paragraphs are violated,
IDEM may assess and Respondents 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 stormwater
pollution prevention plan and any other erosion and sediment control measures
that are 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 take all actions necessary to correct deficiencies found during Site
inspections within timelines established by the IDEM inspector or the SWCD. |
$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 Respondents receives written
notice that IDEM has determined a stipulated penalty is due, the 30th day being a “Due Date.”
IDEM may notify Respondents at any time that a stipulated penalty is due.
Failure to notify Respondents 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 Respondents for
violation of this Agreed Order. Neither assessment nor payment of stipulated penalties
shall preclude IDEM from seeking
additional relief against Respondents 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 Respondents, their 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 Respondents shall in any way
alter their 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, Respondents 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 Respondents
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.
Respondents
shall provide a copy of this Agreed Order, if in force, to any subsequent
owners or successors before ownership rights are transferred. Respondents 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 Respondents pursuant to this Agreed Order,
shall not in any way relieve Respondents of their obligation to comply with the
requirements of their 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 Respondents 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 Respondents 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 Respondents has complied with the
terms and conditions of this Agreed Order and IDEM issues a Resolution of Case
(close out) letter to Respondents.
REMAINDER OF
PAGE INTENTIONALLY LEFT BLANK.
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TECHNICAL
RECOMMENDATION: Department of
Environmental Management |
RESPONDENTS: Mongold Homes
LLC. |
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Jessica
Irvine, Chief |
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Water
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Office of
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Date: |
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COUNSEL
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By: |
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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
June 12, 2024 |
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Martha
Clark Mettler |
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Assistant
Commissioner |
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Office of
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