STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT
) SS: OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION )
COMMISSIONER OF THE DEPARTMENT )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
)
v. ) CASE NO. 1999-4719-W
)
DENNIS E. COPENHAVER BUILDER, INC., )
)
)
Respondent. )
AGREED ORDER
The Complainant and the 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.
I. FINDINGS OF FACT
1. Complainant is the Commissioner (hereinafter referred to as "Complainant") of the Indiana Department of Environmental Management, a department of the State of Indiana created by IC 13-13-1-1.
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 on June 27, 2000 via Certified Mail to:
Mr. Dennis E. Copenhaver, President and Registered Agent
Dennis E. Copenhaver Builder, Inc.
1644 Fry Road, Suite A
Greenwood, Indiana 46142
5. A record review of the Site and fourteen (14) on-site evaluations were conducted at the Site between November 25, 1997 and March 29, 2000 by a representative of the Indiana Department of Natural Resources (IDNR). The following violations were in existence at the time of the record review and on-site evaluations:
a. Pursuant to 327 IAC 15-2-3, a general permit rule may regulate all designated categories of point sources for which a general permit rule exists.
Pursuant to 327 IAC 15-5-1, the purpose of this rule is to reduce pollutants, principally sediment as a result of soil erosion, in storm water discharges into surface waters of the state. Requirements apply to persons who engage in construction activities disturbing five (5) or more acres of the site.
Pursuant to 327 IAC 15-5-2(1), regarding storm water run off associated with construction activity, the requirements under this rule apply to all persons who do not obtain an individual NPDES permit under 327 IAC 15-2-6.
Pursuant to 327 IAC 15-5-2(2), regarding storm water run off associated with construction activity, the requirements under this rule apply to all persons who meet the general permit rule applicability requirement under 327 IAC 15-2-3.
Pursuant to 327 IAC 15-5-2(3), regarding storm water run off associated with construction activity, the requirements under this rule apply to all persons who 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.
The Site involves construction activity of more than five (5) acres of total land area and therefore is regulated by a general permit pursuant to 327 IAC 15-2-3 and must comply with 327 IAC 15-5.
b. Pursuant to 327 IAC 15-2-5(a), any person subject to the requirements of this article shall submit a NOI letter that complies with this section.
Pursuant to 327 IAC 15-2-5(b), a Notice of Intent (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.
Pursuant to 327 IAC 15-5-6, a NOI and additional information shall be submitted to the Commissioner prior to the initiation of land disturbing activities.
The Respondent did not submit a NOI prior to land disturbing activities.
c. Pursuant to 327 IAC 15-5-7, general conditions for construction activity erosion control measures state that the operator shall develop an erosion control plan in accordance with the requirements under this section. The erosion control plan must assure that erosion control measures are implemented and maintained, and that off-site sedimentation does not occur during the period of construction activity at a site. The operator shall maintain all erosion control measures necessary to meet the requirements of this rule.
During the Indiana Department of Natural Resources (IDNR) on-site evaluations conducted on November 25, 1997, December 5, 1997, December 12, 1997, June 22, 1998, August 13, 1998, September 2, 1998, September 29, 1998, January 18, 2000 and January 18, 2000, it was noted that erosion control measures were improperly installed and maintained.
d. Pursuant to 327 IAC 15-5-10(c), if maintenance of remaining erosion control measures are not properly maintained by the person operating the property, the commissioner may pursue enforcement against that person for correction of deficiencies under 327 IAC 15-1-4.
e. Pursuant to IC 13-18-4-5, it is unlawful for any person to throw, run, drain, or otherwise dispose into any of the streams or waters of Indiana; or cause, permit, or suffer to be thrown, run, drained, allowed to seep, or otherwise disposed into any waters; any organic or inorganic matter that causes or contributes to a polluted condition of any waters, as determined by a rule of the board adopted under sections 1 and 3 of this chapter.
Pursuant to 327 IAC 2-1-6(a)(1), all waters at all times and at all places, including 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:
(a) that will settle to form putrescent or otherwise objectionable deposits,
(b) that are in amounts sufficient to be unsightly or deleterious,
(c) that produce color, visible oil sheen, odor, or other conditions in such
degree as to create a nuisance,
(d) which 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) which 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.
IDNR and Marion County SWCD inspections conducted on December 12, 1997, August 13, 1998, September 2, 1998, September 29, 1998 and November 12, 1998 noted off-site sedimentation from the Site to Little Buck Creek and Harting Ditch.
6. The Respondent has submitted the necessary documents to IDEM to extend the NOI until June 2002 and has clarified for IDEM that the NOI will cover Sections 3, 4 and 5 of the Site.
7. 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 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 comply with IC 13-18-4-5, 327 IAC 15-5-7 and 327 IAC 2-1-6(a)(1) by maintaining appropriate erosion control measures in accordance with the approved erosion control plan and the methods outlined in the Indiana Handbook for Erosion Control in Developing Areas from the IDNR, Division of Soil Conservation. These measures shall be adequate in size and location to control the area of run-off and to prevent sedimentation to the Waters of the State and off-site sedimentation. Documentation of adequate placement and appropriate erosion control measures shall be verified and approved by an IDNR representative.
3. The Respondent shall ensure permanent coverage of adequate and appropriate vegetation to minimize erosion on the Site. Documentation of adequate placement and appropriate erosion control measures shall be verified and approved by an IDNR representative.
4. The Respondent shall inspect the Site on a twice per month basis and after rainfall events to ensure that all erosion and sediment control measures are properly maintained (for example, remove accumulated sediment from behind silt fences and storm inlets, assure that conveyance channels and swales are stabilized, and install additional erosion control measures if determined necessary). The twice per month inspections shall be maintained in a log for documentation and review purposes throughout the duration of the project and until the IDNR approves the adequacy of the remaining erosion control measures as provided by 327 IAC 15-5-8(b).
5. Respondent is assessed a civil penalty of Fourteen Thousand Eight Hundred Dollars ($14,800). Said 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.
6. 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
PenaltyFailure to comply with Order paragraph No. 4 $250 per week
7. 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.
8. Civil and 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
9. In the event that the civil penalty required by paragraph 5 is not paid within thirty (30) days of the Effective Date of this Agreed Order, 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.
10. 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.
11. 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.
12. The Respondent shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights to the 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.
13. This Agreed Order shall remain in effect for a period of one (1) year and until Respondent has complied with the requirements of paragraphs 2 through 5 of this Agreed Order and Complainant issues a Resolution of Cause letter.
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: _____________________
Sierra L. Cutts, Attorney
Office of Legal Counsel
Department of Environmental Management
Date: _______________ Date: _______________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _____ DAY OF ____________________, 2001.
For the Commissioner,
Signed 3/7/01
___________________________
Felicia A. Robinson
Assistant Commissioner of Enforcement