STATE OF INDIANA    )        BEFORE THE INDIANA DEPARTMENT
                )    SS:    OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION    )

COMMISSIONER OF THE DEPARTMENT    )
OF ENVIRONMENTAL MANAGEMENT,    )
                            )
            Complainant,        )
                            )     
            v.                )CAUSE NOS. B-2215 and B-2230    or                             )1997-4535-W and 1997-4550-W
LEFT GUARD CORP,                )
                            )
            Respondent.            )

2.    The Respondent is Left Guard Corp (hereinafter referred to as "Respondent"). The Respondent was the owner and developer of the Homestead Hills Subdivision on Homestead Road in Fort Wayne, Allen County, Indiana, until it sold the site to Bauman Construction, Inc., on January 15, 1997. By contractual agreement, the Respondent was responsible for maintaining the erosion control measures at the Homestead Hills Subdivision until January 14, 1998. The Respondent is the owner and developer of the Winchester Ridge Subdivision on Dunkelburg Road in Fort Wayne, Allen County, Indiana.

3.    IDEM has jurisdiction over the parties and the subject matter of this action.

4.    327 IAC 15-5-2 applies to all persons who:

     do not obtain an individual NPDES permit under 327 IAC 15-2-6;

b.    meet the general permit rule applicability requirements under 327 IAC 15-2-3; and

c.    are involved in construction activity that includes clearing, grading, excavating, and other land disturbing activities, except operations that result in the disturbance of less than five (5) acres of total land area and are not part of a larger common plan of development or sale.

5.    327 IAC 15-5-7 pertains to general conditions for construction activity erosion control measures. In essence it states that the operator shall develop an erosion control plan in accordance with the requirements under this section. The following requirements shall be met on all sites during the period when active land disturbing activities occur:

a.    Sediment-laden water, which would otherwise flow from the site, shall be detained by erosion control practices appropriate to minimize sedimentation in the receiving stream. No storm water shall be discharged from the site in a manner causing erosion in the receiving channel at the point of discharge.

b.    Appropriate measures shall be taken by the operator to minimize or eliminate wastes or unused building materials from being carried from a site by run-off.

c.    Sediment being tracked from a site onto public or private roadways shall be minimized.

d.    Public or private roadways shall be kept clear of accumulated sediment. Bulk clearing of accumulated sediment shall not include flushing the area with water. Cleared sediment shall be returned to the point of likely origin or other suitable location.

e.    All on-site storm drain inlets shall be protected against sedimentation with barriers meeting acceptable design criteria, standards, and specifications for that purpose.

f.    Storm water drainage from adjacent areas that naturally pass through the site shall be controlled by diverting it around the disturbed area.

g.    Run-off from a disturbed area shall be controlled by one (1) or more of the measures required under this section.

h.    All erosion control measures necessary to meet the requirements of this rule shall be maintained by the operator.

i.    All erosion control measures required to comply with this rule shall meet the design criteria, standards and specifications for erosion control measures established by IDEM in guidance documents. The erosion control plan shall include, but is not limited to, those measures required under this section.

6.    IC 13-30-2-1 prohibits, in substance, any person from discharging, emitting, causing, allowing, or threatening 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 or into any publicly-owned treatment works in any form which causes or would cause pollution which violates rules, standards, or discharge of emission requirements adopted by the appropriate board pursuant to this article.

7.    A Notice of Intent (NOI) letter, received from the Respondent by IDEM on August 19, 1996, indicated that the Homestead Hills Subdivision construction project involves land disturbing activity on a total area of twelve (12) acres, thus subjecting the project to the requirements of 327 IAC 15.    

8.    On October 23, 1996; June 3, June 20, and August 12, 1997; and October 21, 1998, representatives from the Indiana Department of Natural Resources (IDNR) inspected the Homestead Hills Subdivision construction site. The following were observed on one or more occasions:

    a.    sedimentation leaving the site, in violation of 327 IAC 15-5-7(b)(1) and IC 13- 30-2-1;

    b.    soil and sedimentation being tracked onto public or private roadways, in violation of 327 IAC 15-5-7(b)(3) and IC 13-30-2-1;

    c.    lack of appropriate stabilization and sediment control measures in on-site drainage channels and outlets, in violation of both 327 IAC 15-5-7(b)(1) and 327 IAC 15-5-7(b)(6)(B);

    d.    the erosion and sedimentation control plan was not being effectively implemented, in violation of both 327 IAC 15-5-5(4)(B) and 327 IAC 15-5- 7(b)(6)(B)(ii);

    e.    inadequately protected storm inlets, in violation of 327 IAC 15-5-7-(b)(5);

    f.    improperly maintained erosion control measures, in violation of 327 IAC 15-5- 7(c);

    g.    lack of erosion control measures in appropriate locations, in violation of 327 IAC 15-5-7(d)(3)(C);

    h.    lack of proper erosion and sediment control measures incorporated into land disturbing activities, in violation of 327 IAC 15-5-7(d)(3)(D); and

    i.    areas not stabilized in the specified construction sequence, in violation of 327 IAC 15-5-7-(d)(3)(D).

    It was noted during the August 12, 1997, inspection that some of the previously deficient areas had been graded and mulched, and that the streets had been scraped.

9.    On October 24, 1996, and June 4 and June 23, 1997, IDNR sent to the Respondent letters regarding the violations noted during the inspections conducted at the Homestead Hills Subdivision construction site on October 23, 1996, and June 3 and June 20, 1997, respectively.

10.    On January 15, 1997, Left Guard, Inc., sold the Homestead Hills Subdivision to Bauman Construction, Inc. The terms of the sales contract required Left Guard, Inc., to maintain the erosion control measures at the project construction site for one (1) year from the date of closing.

11.    On July 17, 1997, IDEM issued to the Respondent, via Certified Mail No. Z 336 262 221, a Warning of Noncompliance (WONC) for the Homestead Hills Subdivision construction site for the violations noted through the June 20, 1997, inspection. The Respondent received the WONC on July 21, 1997. No response to the WONC was received from the Respondent.

12.    In a letter dated August 6, 1997, in response to a telephone call from IDEM's Office of Enforcement (OE), the Respondent advised IDEM of improvements that either had been made or were planning to be made in the near future.

13.    An NOI letter, received from the Respondent by IDEM on January 26, 1996, indicated that the Winchester Ridge Subdivision construction project involves land disturbing activity on a total area of twenty-eight and one-tenth (28.1) acres, thus subjecting the project to the requirements of 327 IAC 15.    

14.    On June 3, August 12, and September 25, 1997; June 8, July 21, and October 21, 1998; and December 2, 1999; representatives from IDNR inspected the Winchester Ridge Subdivision construction site. The following were observed on one or more occasions:

    a.    sedimentation leaving the site, in violation of 327 IAC 15-5-7(b)(1) and IC 13- 30-2-1;

    b.    soil and sedimentation being tracked onto public or private roadways, in violation of 327 IAC 15-5-7(b)(3) and IC 13-30-2-1;

    c.    lack of appropriate stabilization and sediment control measures in on-site drainage channels and outlets, in violation of both 327 IAC 15-5-7(b)(1) and 327 IAC 15-5-7(b)(6)(B);

    d.    the erosion and sedimentation control plan was not being effectively implemented, in violation of both 327 IAC 15-5-5(4)(B) and 327 IAC 15-5- 7(b)(6)(B)(ii);

    e.    inadequately protected storm inlets, in violation of 327 IAC 15-5-7-(b)(5);

    f.    improperly maintained erosion control measures, in violation of 327 IAC 15-5- 7(c);

    g.    lack of erosion control measures in appropriate locations, in violation of 327 IAC 15-5-7(d)(3)(C);

    h.    lack of proper erosion and sediment control measures incorporated into land disturbing activities, in violation of 327 IAC 15-5-7(d)(3)(D); and

    i.    areas not stabilized in the specified construction sequence, in violation of 327 IAC 15-5-7-(d)(3)(D).

    During the August 12, 1997, inspection it was noted that the south ditch was being prepared for seeding. During the September 25, 1997, inspection it was noted that vegetative buffers had been installed along the front of most of the lots.

15.    On June 4, 1997, IDNR sent to the Respondent a letter regarding the violations noted during the June 3, 1997, inspection conducted at the Winchester Ridge Subdivision construction site.

16.    On July 26, 1999, IDNR representatives inspected and found the site to be in compliance.

18.    On October 21, 1998, a settlement conference was held with the Respondent. The corrective measures that needed to be taken by the Respondent at each site were discussed, as was the proposed penalty. Agreement was reached regarding the corrective measures but not on the proposed penalty. The Respondent agreed to submit a penalty counter-offer by November 25, 1998.

19.    No penalty counter-offer was received by IDEM by November 25, 1998. Subsequent attempts by IDEM on December 7 and December 15, 1998, to contact the Respondent, through counsel, and resolve the penalty issue did not produce any results. On December 15, 1998, the Respondent, through counsel, was advised that a Notice and Order of the Commissioner of the Indiana Department of Environmental Management (CO) would be drafted to resolve the two causes. The Respondent was also advised that settlement negotiations could continue, even though a CO was being drafted, and negotiated settlement could be achieved up until the CO was formally issued.

20.    On March 25, 1999, the CO was issued to the Respondent.

21.    On April 19, 1999, the Office of Environmental Adjudication (OEA) and IDEM received the Respondent's Request for Review of the CO.

22.    On June 18, 1999, a pre-hearing conference between the parties was held by the OEA. A hearing in this matter was scheduled for October 27, 1999.

23.    Prior to the scheduled October 27, 1999, hearing, the parties reached agreement regarding the terms of settlement and agreed to enter into this Agreed Order.

24.    In recognition of the settlement reached, the Respondent waives any right to administrative and judicial review of this Agreed Order.

1.    This Agreed Order shall be effective (hereinafter referred to as "effective date") when it is approved by the Complainant or her delegate, and has been received by the Respondent. This Agreed Order shall have no force or effect until the effective date.

2.    The Respondent shall, within 10 days of the effective date of this Agreed Order, correct any unsatisfactory erosion control measures in existence as of the effective date of this Agreed Order to the satisfaction of IDNR.

3.    The Respondent shall continue to maintain the erosion control measures and perform regular erosion control maintenance at the Winchester Ridge Subdivision construction site to the satisfaction of IDNR.

4.    The Respondent is assessed a total Civil Penalty of Nine Thousand Dollars ($9,000). Three Thousand Dollars ($3,000) of the Civil Penalty shall be attributable to Cause No. B-2215; the remaining Six Thousand Dollars ($6,000) of the Civil Penalty shall be attributable to Cause No. B-2230. Said total penalty amount shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the effective date of this Agreed Order.

5.    In the event the following terms and conditions are violated, the Complainant may assess and the Respondent shall pay a stipulated penalty in the following amounts:

        Violation            Penalty

        Failure to comply with:

        Paragraph 2            $500 per each day past the 10-day deadline that the Respondent fails to correct any unsatisfactory erosion control measures in existence as of the effective date to the satisfaction of IDNR

        Paragraph 3            $1000 per each week after receipt of notification from IDNR of unsatisfactory erosion control practices at the Winchester Ridge Subdivision construction site that the Respondent fails to correct the identified

erosion control practices to the satisfaction of IDNR.
6.    Stipulated penalties shall be due and payable within thirty (30) days after the Respondent receives written notice that the Complainant has determined a stipulated penalty is due. Assessment and payment of stipulated penalties shall not preclude the Complainant from seeking any additional relief against the Respondent for violation of the Agreed Order. In lieu of assessment of the stipulated penalties given above, the Complainant may seek any other remedies or sanctions available by virtue of the Respondent's violation of this Agreed Order or Indiana law, including, but not limited to, civil penalties pursuant to IC 13-30-3-4.

7.    Civil and stipulated penalties are payable by check to the Environmental Management Special Fund. Checks shall include the Cause Number of this Agreed Order and shall be mailed to:

        Cashier
        Indiana Department of Environmental Management
        100 North Senate Avenue
        P.O. Box 7060
        Indianapolis, Indiana 46207-7060

8.    In the event that the Civil Penalty required by Section II, Paragraph 4, is not paid within thirty (30) days of the effective date of this Agreed Order, the Respondent shall pay interest on the unpaid balance at the rate established by IC 24-4.6-1-101. The interest shall continue to accrue until the Civil Penalty is paid in full.

9.    "Force Majeure", for purposes of this Agreed Order, is defined as any event arising from causes beyond the control of the Respondent that delays or prevents the performance of any obligation under this Agreed Order despite Respondent's best efforts to fulfill the obligation. The requirement that the Respondent exercise "best efforts to fulfill the obligation" includes using best efforts to anticipate any potential force majeure event and best efforts to address the effects of any potential force majeure event (1) as it is occurring and (2) following the potential force majeure event, such that the delay is minimized to the greatest extent possible. "Force Majeure" does not include financial inability to complete the work required by this Agreed Order or increases in costs to perform the work.

    The Respondent shall notify IDEM by calling within 3 calendar days and by writing no later than 7 calendar days after any event which the Respondent contends is a force majeure. Such notification shall describe the anticipated length of the delay, the cause or causes of the delay, the measures taken or to be taken by the Respondent to minimize the delay, and the timetable by which these measures will be implemented. The Respondent shall include with any notice all available documentation supporting their claim that the delay was attributable to a force majeure. Failure to comply with the above requirements shall preclude the Respondent from asserting any claim of force majeure for that event. The Respondent shall have the burden of demonstrating that the event is a force majeure. The decision of whether an event is a force majeure shall be made by IDEM. Said decision shall be communicated to the Respondent.

    If a delay is attributable to a force majeure, IDEM shall extend, in writing, the time period for performance under this Agreed Order, by the amount of time that is attributable to the event constituting the force majeure.

10.    This Agreed Order shall apply to and be binding upon the Respondent, its officers, directors, principals, agents, successors, subsidiaries, and assigns. The signatories to this Agreed Order certify that they are fully authorized to execute this document and legally bind the parties they represent. No change in ownership, corporate, or partnership status of the Respondent shall in any way alter the Respondent's status or responsibilities under this Agreed Order.
    
11.    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 the Agreed Order did not contain the invalid terms.

12.    The Respondent shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights are transferred. The Respondent shall ensure that all contractors, firms, and other persons performing work under this Agreed Order comply with the terms of this Agreed Order.

13.    Entry into this Agreed Order supersedes the Notice and Order of the Commissioner issued to the Respondent by IDEM on March 25, 1999.

14.    This Agreed Order shall remain in effect until one of the following occurs:

    a.    this Agreed Order has been in effect for 12 months; or

    b.    the Respondent submits a Notice of Termination (NOT) for the Winchester Ridge Subdivision construction site; or

    c.    the Respondent sells the Winchester Ridge Subdivision construction site and the new owner has filed a Notice of Intent for the construction site.

        

TECHNICAL RECOMMENDATION:        RESPONDENT:

By:         By:
    Mark W. Stanifer
    Water Enforcement Section            Printed:
    Office of Enforcement
    Department of Environmental            Title:
    Management    

Date:         Date:

COUNSEL FOR COMPLAINANT:            COUNSEL FOR RESPONDENT:

By:         By:

Printed:         Printed:
    Office of Legal Counsel
    Department of Environmental
    Management

Date:         Date:

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS DAY OF , .

        
        FOR THE COMMISSIONER:

         Original signed on January 25, 2000 by
        Felicia A. Robinson
        Assistant Commissioner
        Office of Enforcement

Converted by Andrew Scriven