STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT
COMMISSIONER OF THE DEPARTMENT )
) SS: OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
)
v. )CAUSE NO. B-2413(b) or
) 1998-4703-W
ROJO DEVELOPMENT, INC., )
A.J. HICKEY, PRESIDENT, )
)
Respondent. )
2. Respondent is ROJO Development, Inc., A.J. Hickey, President (hereinafter referred to as
"Respondent"), which owns the property where Mishawaka Dome Sport Complex, Inc.
initiated the development known as Mishawaka Sport Dome Complex (the
"Development"), located in St. Joseph County, Indiana.
3. The Indiana Department of Environmental Management ("IDEM") has jurisdiction over
the parties and subject matter of this action.
4. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation via Certified Mail on
January 28, 1999 to:
ROJO Development, Inc. and to: Mishawaka Dome Sport Complex, Inc.
A.J. Hickey, President Dean Schmidt, Registered Agent
C/O Thomas Lewis, Secretary 214 West 7th Street
1800 Valley American Bank Building Mishawaka, Indiana 46544
South Bend, Indiana 46601
5. This Agreed Order settles issues concerning violations of rules and statutes that occurred
in 1998 and 1999 for which ROJO Development, Inc. was responsible, and not those
issues concerning Mishawaka Dome Sport Complex, Inc. which are addressed under
Agreed Order, Cause No. B-2413(b), adopted on October 15, 1999.
6. 327 IAC 15-5-2 pertains to storm water run-off associated with construction activity. The
requirements under this rule apply to all persons who:
(1) do not obtain an individual NPDES permit under 327 IAC 15-2-6;
(2) meet the general permit rule applicability requirement under 327 IAC 15-2-3;
and
(3) are involved in construction activity, which 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 which are not part of a larger
common plan of development or sale.
7. 327 IAC 15-2-5(a) states, "Any person subject to the requirements of this article shall
submit a Notice of Intent (NOI) letter that complies with this section, 327 IAC 15-3, and
the additional requirements in any applicable general permit rule."
8. 327 IAC 15-2-5(b) states, "A NOI letter shall be submitted to the commissioner by the
time specified under 327 IAC 15-3 or the time indicated in the applicable general permit
rule."
9. 327 IAC 15-2-5(c) states, "The person responsible for the operation of the facility from
which a point source discharge of pollutants and/or stormwater occurs must submit a NOI
letter."
10. 327 IAC 15-2-3 states in part, "A general permit rule may regulate all designated
categories of point sources for which a general permit rule exists..."
11. 327 IAC 15-5-6, pertains to the deadline for submittal of a Notice of Intent (NOI) letter
and additional information. All information required under 327 IAC 15-3 and 327 IAC
15-5-5 shall be submitted to the Commissioner prior to the initiation of land disturbing
activities.
12. 327 IAC 15-5-5 states, "In addition to the NOI letter requirements under 327 IAC 15-3,
the following information must be submitted by the operator with NOI letter under this
rule:
(1) A brief description of the construction project, including, but not limited to, a
statement of the total acreage of the site.
(2) Estimated timetable for land disturbing activities and installation of erosion
control measures.
(3) Statement of the number of acres to be involved in land disturbing activities.
(4) A written certification by the operator that:
(A) the erosion control measures included in the erosion control plan comply
with the requirements under sections 7 and 9 of this rule and that the plan
complies with applicable state, country, or local erosion control
requirements;
(B) the erosion control measures will be implemented in accordance with the
plan;
(C) verification that an appropriate state, county, or local erosion control
authority and the soil and water conservation district office have been sent
a copy of the plan for review; and
(D) verification that implementation of the erosion control plan will be
conducted by personnel trained in erosion control practices.
(5) Proof of publication in a newspaper of general circulation in the affected area that
notified the public that a construction activity under this rule is to commence."
13. 327 IAC 15-5-7 pertains to general conditions for construction activity erosion control
measures. It states, in substance, 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 otherwise would 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 the 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 specification for that
purpose.
f. The following items apply during the time construction activity is taking place:
1) Storm water drainage from adjacent areas that naturally pass through the
site shall be controlled by diverting it around the disturbed area.
2) Run-off from a disturbed area shall be controlled by one or more of the
measures required under this section.
3) During the period of construction activity at a site, all erosion control
measures necessary to meet the requirements of this rule shall be
maintained by the operator.
4) All erosion control measures required to comply with this rule shall meet
the design criteria, standards, and specifications for erosion control
measures established by the IDEM in guidance documents. The erosion
control plan shall include, but is not limited to, a site map, a plan of final
site conditions and a site construction plan, all as detailed in 327 IAC 15-
5-7(d).
14. The Respondent's violations of the above noted Indiana Administrative Code provisions
are based on the following:
A) The Mishawaka Sports Dome Complex falls under the applicability requirements
of 327 IAC 15-5-2 in that five (5) or more acres of total land area are involved in
construction activity. The construction activity at this site is not covered by an
NPDES permit under 327 IAC 15-2-6, but meets the general permit rule
applicability requirement under 327 IAC 15-2-3. The development is therefore
categorized as a point source discharge of stormwater and is required by 327 IAC
15-2-5(c) to submit a NOI letter.
B) On September 1, 1998, the St. Joseph County Soil and Water Conservation
District (SWCD) obtained an Erosion and Sediment Control Plan for the
Mishawaka Sports Dome Complex in Mishawaka, Indiana from the City of
Mishawaka Department of Engineering.
C) On September 17, 1998, SWCD and Indiana Department of Natural Resources,
Division of Soil Conservation (IDNR) staff conducted a site visit to the
Development and observed that the entire 60 acres site had been cleared and that
the topography had been altered significantly. IDNR staff observed a construction
crew on site installing rock check dams in the small ravine along with silt fences.
IDNR staff were also informed that double silt fencing was being installed to help
control the water and sediment. It was observed that there was an adjacent ravine
approximately 10 to 15 feet to the north of the existing gully that was being
worked on that was coming out of the corn field to the north of the project site.
IDNR staff continued to walk the site and discovered that silt fencing needed to be
placed at the southwest corner of the property to protect the adjoining wooded
area. It was observed that sediment traps were definitely needed along with
additional perimeter protection. IDNR staff discussed their concern of necessary
silt fencing for the southwest corner with the construction crew and the
construction crew noted that they were aware of the area and that the silt fencing
would be installed.
D) On September 23, 1998, IDNR and SWCD staff visited the Development and,
among other things, observed off-site sedimentation.
E) On September 28, 1998, IDNR and SWCD staff met with Mr. Schmidt, Mr.
Hickey, and a representative of the excavating company that had performed the
clearing and excavation work on the Development and discussed the existing
sedimentation problems on site and off-site and what measures would need to be
installed immediately to stop further sedimentation. During the site visit IDNR
staff explained that the Erosion and Sediment Control Plan must be submitted to
the SWCD for review and that IDNR and SWCD are not always notified if
another county or city department receives a plan.
F) On October 1, 1998, IDNR staff sent a letter to Mr. Schmidt and a copy of the
letter to Mr. Hickey that outlined the items concerning erosion and sediment
control discussed during the September 28, 1998, meeting at the Development.
The letter included recommendations for structural erosion and sediment control
measures that needed to be installed.
G) On October 2, 1998, SWCD staff conducted a site visit to the Development and
observed and photographed areas of ponding water at the southeast corner
bordering a county ditch and at the northeast corner bordering the woods. Signs
of additional sediment occurring off slopes and entering into low lying areas were
observed and photographed.
H) On October 6, 1998, IDEM sent a Warning of Noncompliance letter to Mr.
Schmidt and a copy of the letter to Mr. Hickey. The letter stated that IDEM had
been notified by IDNR staff that the Development was out of compliance with
NPDES General Permit rule 327 IAC 15-5. The letter informed Mr. Schmidt and
Mr. Hickey that 327 IAC 15-5-2 requires the submittal of a Notice of Intent (NOI)
letter and payment of a $100 fee to the IDEM. The letter also noted that a soil
erosion control plan was submitted for the Development but not before earth-
moving activities began. It was noted that additional information needs to be
submitted before the plan is deemed to be acceptable. The letter also noted the
provisions of 327 IAC 15-5-7(c). It stated that it had been noted during an
inspection that sediment had left the site and that this would not have occurred if
proper erosion control measures had been in place before earth moving began.
I) On November 2, 1998, IDNR sent a letter to Larry R. Long and Associates, Inc.,
the consulting firm that submitted the erosion and sediment control plan for the
Development. The letter included a checklist the IDNR staff used when
reviewing the plan, and a Comments Sheet that was attached to the review.
Comments included:
The Erosion Control Plan doesn't provide a true reflection of what is occurring on the construction site. It does not show the soil stockpiles located in the southeast corner of the construction area. As I [IDNR Urban
Conservation Specialist, Larry Osterholz] discussed with Mr. Schmidt on
October 29, 1998, silt fence should be extended along the south and east
sides of the stockpiles to contain them on site until construction resumes
next spring.
The plan should also show the approximated locations of the sediment
traps and rock dams that have been constructed on site as well as the
temporary seeding and hydro-mulching that is taking place.
The November 2, 1998, letter also included comments regarding the Phasing of
Construction, the Existing Site Conditions, Soils, and Floodplains, and directed
the consulting firm to make the necessary changes, and submit a revised plan to
the St. Joseph County Soil and Water Conservation District by November 20,
1998.
J) On October 29, 1998, IDNR and SWCD staff met at the construction site with Mr.
Schmidt and discussed the need for inspection and maintenance of existing
erosion and sediment control measures. IDNR staff explained that some of the
measures did not meet practice standards and specifications and that these on-site
practices needed to be modified.
K) Mr. Schmidt submitted a NOI letter dated October 28, 1998, and payment of the
$100 fee for the Development. The NOI letter listed the Operator Name as Dean
Schmidt and the Company Name as Mishawaka Dome Sports Complex, Inc.
L) On November 4, 1998, IDNR sent a letter to Mr. Schmidt and a copy of the letter
to Mr. Hickey that outlined the items that were discussed when they had met at
the Development on October 29, 1998. The letter stated that the vegetative
erosion and sediment control measures needed to be completed as soon as
possible and that structural erosion and sediment control measures should be
installed by early to mid-November or sooner if possible. The letter also
recommended specific erosion control measures and noted that IDNR staff had
discussed with the Developments consulting firm the fact that the erosion and
sediment control measures that have been or are being install on-site should be
included in the projects's Erosion Control Plan.
M) On November 9, 1998, IDEM sent a letter to Mr. Schmidt stating that upon review of the NOI letter submitted to IDEM in compliance with 327 IAC 15-5, it had been determined that the NOI letter was deficient and that an amendment to the NOI letter containing the deficient information must be submitted. The letter also stated that in accordance with 327 IAC 15-5-6, all information required under 327 IAC 15-3 and section 5 of this rule must be submitted prior to the initiation of land disturbing activities in order to be covered and in compliance with Rule 5.
The letter noted that the storm water general permit applicant was to provide
proof of publication in a newspaper of general circulation in the affected area that
notified the public that a construction activity under this rule is to commence.
N) The NOI letter that was submitted by Mr. Schmidt dated October 28, 1998, for the
Mishawaka Sports Dome Complex included language for public notice and stated,
"This Public Notice is to appear, twice, one week apart, in a newspaper of local
distribution." However, the NOI did not include proof of publication in a
newspaper of general circulation and as of December 17, 1998, IDEM had not
received a proof of publication as required by 327 IAC 15-5-5(5) for the
Development. The NOI letter also stated that the `Start Date' for the
Development would be March 15, 1999. However, as noted by inspections and
site visits to the Development by IDNR staff in September and October 1998,
indicate that the site had been cleared and land disturbing activities had been
initiated on or before September 17, 1998.
O) On November 20, 1998, IDNR sent a letter to the Department of Engineering of
the City of Mishawaka with copies of the letter sent to Mr. Schmidt and Mr.
Hickey. The letter stated that a follow-up inspection had been conducted of the
Development on November 19, 1998 and noted that some erosion and sediment
control measures had been constructed and should provide for minimal off-site
sediment damage during the winter months. However, IDNR staff stated that
some of the practices that had been installed did not fully meet the design criteria
as outlined in the Indiana Handbook for Erosion Control in Development Areas
and the site was seeded at such a late date that the vegetation had not had a chance
to develop a dense cover and well established rooting system. The letter also
outlined areas of erosion and sediment control of concern that were noted during
the inspection, and recommended that the owner/developer inspect the
Development on regular basis.
P) On December 3 and December 15, 1998, IDNR and SWCD staff conducted On- Site Evaluations for Erosion and Sediment Control at the Development and noted on the evaluation reports: there was evidence of sediment in a legal ditch; silt fencing was down throughout the southeast drainage channel; rills were forming throughout the site; sediment traps in the northeast and southwest corners were at peak capacity; there was little germination on the flat areas above the draws; and gullies were enlarging on property to the north of the complex site. The evaluation reports noted that there was evidence of off-site sedimentation that was described as deposition of sediment in a county ditch and also onto an adjacent landowner's property to the east of the project. The evaluation reports also noted that repairs as outlined in a letter from IDNR dated November 20, 1998, had not been implemented to date, and that SWCD had still not received the additional information from the project's consulting firm as requested on Technical Review
Comments Statement dated November 2, 1998. The reports also noted that it was
necessary to repair the check dam in the woods to the east of the site.
Q) On March 12, 1999, the Respondent submitted a letter to IDEM that stated, in
substance, that ROJO Development, Inc. had been negotiating the sale of the
property with Dean H. Schmidt and Tracy L. Schmidt, however the sale was never
finalized. The letter stated that Mr. Schmidt began construction activity without
ROJO Development's knowledge or permission, and did not have permission to
be on the property. After the contract to purchase the property was appropriately
canceled and terminated, ROJO Development, Inc. has taken and will take
appropriate measures to control sediment runoff.
R) On April 14, 1999, and on November 3, 1999, IDNR staff met with the
Respondent's representatives at the Development and inspected the site. After
each inspection IDNR staff sent a letter to Respondent (on April 15, 1999, and
November 15, 1999) and made recommendations as to installation of additional
erosion control measures and maintenance of the erosion control measures. The
Respondent responded to IDNR's recommendations and the site conditions related
to erosion control have improved. However, the Respondent will need to
continue to install additional erosion control measures and maintain the existing
erosion control measures as necessary until site conditions at the Development are
permanently stabilized.
15. The information outlined in item 14 of these "Findings of Fact" from site visits, letters,
photographs, and other correspondence indicates that Mishawaka Dome Sport Complex,
Inc., which initiated the Development on or before September 17, 1998, and ROJO
Development, Inc., which owns the real estate and took responsibility for installation and
maintenance of erosion control measures after Mishawaka Dome sport Complex, Inc.
ended its involvement in the Development in late 1998 or early 1999, have violated
provisions of 327 IAC 15-5-5 and 327 IAC 15-5-6, in that they did not submit a NOI
letter with necessary information to the Commissioner or an Erosion Control Plan to the
appropriate soil and water conservation district office for review prior to the initiation of
land disturbing activities at the Development.
16. The information outlined in item 13 of these "Findings of Fact" from site visits, letters, photographs, and other correspondence also indicates that Mishawaka Dome Sport Complex, Inc., which initiated the Development on or before September 17, 1998, and ROJO Development, Inc., which owns the real estate and took responsibility for installation and maintenance of erosion control measures after Mishawaka Dome Sport Complex, Inc. ended its involvement in the Development in late 1998 or early 1999, have violated provisions of 327 IAC 15-5-7, in that during the period when active land disturbing activities occurred, they failed to detain sediment-laden water which otherwise would flow from the site by erosion control practices appropriate to minimize
sedimentation in the receiving stream. They failed to implement and maintain
appropriate erosion control practices to control run-off from disturbed areas, resulting in
sediment leaving the site. They have failed to appropriately incorporate erosion control
measures established by the IDEM in guidance documents into land disturbing activities.
17. In recognition of the settlement reached, Respondent waives any right to administrative
and judicial review of this Agreed Order.
2. Within ten (10) days of the Effective Date, the Respondent shall assure that the
recommended items A, B, C, and D outlined in IDNR's November 15, 1999 letter (see
Attachment A) are completed at the property where the Mishawaka Sports Dome
Complex development was initiated. Additionally, until the earlier of:
1) the Respondent sells the entire property,
2) the IDNR provides written documentation that the site is permanently
stabilized, or
3) the Respondent re-initiates construction activities,
the Respondent shall inspect the site on a weekly basis and during or after each storm
event and maintain the erosion control measures as outlined in item E of IDNR's
November 15, 1999 letter (see attachment A).
3. If the Respondent decides to re-initiate construction activities at the property, then prior
to initiation of associated land disturbing activities, the Respondent will submit a revised
erosion control plan to the St. Joseph County SWCD, and a new NOI to IDEM. If the
Respondent sells the property, then the Respondent will provide the purchaser with
written notification of the provisions requiring submittal of a erosion control plan and
NOI as required by 327 IAC 15-5.
4. 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
Paragraph 2: $1,000 per week for failure to timely assure that the
recommended items A, B, C, and D outlined in IDNR's
November 15, 1999 letter are completed at the property
where the Mishawaka Sports Dome Complex development
was initiated, and
$1,000 per week for failure to inspect the site on a weekly
basis and during or after each storm event and maintain the
erosion control measures as outlined in item E of IDNR's
November 15, 1999 letter.
Paragraph 3: $1,000 per week for failure to submit a revised erosion control plan to the St. Joseph County SWCD, and a new
NOI to IDEM prior to initiating land disturbing activities at
the property should the Respondent re-initiate construction
activities at the property, and
$5,000 should the Respondent sell the property and fail to
provide the purchaser with written notification of the
provisions requiring submittal of a erosion control plan and
a NOI as required by 327 IAC 15-5.
5. Stipulated penalties shall be due and payable within thirty (30) days after 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 any of the stipulated penalties given above, the Complainant may seek any other
remedies or sanctions available by virtue of Respondent's violation of this Agreed Order,
or Indiana law, including but not limited to civil penalties pursuant to IC 13-30-4.
6. Stipulated penalties are payable by check to the Environmental Management Special
Fund. Checks shall include the Cause Number of this action and shall be mailed to:
Cashier
Indiana Department of Environmental Management
100 N. Senate Avenue
P. O. Box 7060
Indianapolis, IN 46207-7060
7. This Agreed Order shall apply to and be binding upon the Respondent, its officers,
directors, principals, agents, successors, subsidiaries, and assigns. The Respondent's
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 its status or responsibilities
under this Agreed Order.
8. In the event that any terms of the 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.
9. The Respondent shall provide a copy of this Agreed Order, if in force, to any subsequent
owners or successors before ownership rights to the Mishawaka Sports Dome Complex
development 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.
10. This Agreed Order shall remain in effect until Respondent has complied with the
requirements of paragraphs 2 and 3 of this Agreed Order.
TECHNICAL RECOMMENDATION: RESPONDENT:
Department of Environmental Management
By: _________________________ By: _________________________
Mark W. Stanifer, Section Chief
Office of Enforcement Printed: ________________________
Title: ________________________
Date: _______________ Date: _______________
COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:
Department of Environmental Management
By: _________________________ By: _____________________
Nancy A. Holloran
Office of Legal Counsel
Department of Environmental Management
Date: _______________ Date: _______________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS _____ DAY OF ____________________, 2000.
For the Commissioner,
__Signed 1/28/00______
Felicia A. Robinson
Assistant Commissioner of Enforcement
Converted by Andrew Scriven