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

COMMISSIONER OF THE DEPARTMENT        )
OF ENVIRONMENTAL MANAGEMENT,        )
                                )
        Complainant,                )
                                )
                    v.            )CAUSE NO. B-2490 or 1999-4784-W
                                )
Ashwood Associates, LLC,                    )
                                )
        Respondent.                    )

2.    Respondent is Ashwood Associates, LLC ("Respondent"), which is developing Ashwood Condos, Section 1 & 2, located on the northeast corner of State Road 135 and Demaree Road, in Greenwood, in Johnson 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, on November 5, 1999, IDEM issued a Notice of Violation via Certified Mail to:

    Mr. J. Greg Allen, Registered Agent        Dave Alderson, Manager    
    Ashwood Associates, LLC            Ashwood Associates, LLC
    489 South State Road 135            1700 West Smith Valley Road
    Suite C                    Greenwood, IN 46142
    Greenwood, IN 46142

5.    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.

6.    Pursuant to 327 IAC 15-2-5(b), 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.

7.    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.

8.    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.

9.    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.

10.    Pursuant to 327 IAC 15-5-5(4), in addition to the NOI letter requirements under 327 IAC 15-3, the following information must be submitted by the operator with a NOI letter under this rule:
    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, county, 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.

11.    Pursuant to 327 IAC 15-5-6, all information required under 327 IAC 15-3 and section 5 of this rule shall be submitted to the commissioner prior to the initiation of land disturbing activities.

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

13.    Pursuant to 327 IAC 15-5-10(a), the commissioner and/or designated representative may inspect any site involved in land disturbing activities regulated by this rule at reasonable times. The erosion control plan must be readily accessible for review at the time of the inspection.

14.    Pursuant to 327 IAC 15-5-10(c), if 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.
                                                
15.    The Ashwood Condos, Section 1 & 2 development involves construction activity of more than five (5) acres of total land area and is part of a larger common plan of development or sale and therefore may be regulated by a general permit pursuant to 327 IAC 15-2-3 and must comply with 327 IAC 15-5.

16.     Inspections of the Ashwood Condos, Section 1 & 2 development by Indiana Department of Natural Resources, Division of Soil Conservation staff conducted on October 16, 1998, April 22, 1999, and August 30, 1999, indicated that the Respondent has failed to develop, implement, and maintain adequate erosion control measures in violation of the above noted provisions of 327 IAC 15-5.

17.    A record review indicated that the Respondent had failed to submit a NOI to IDEM and an erosion control plan to the soil and water conservation district office prior to the initiation of land disturbing activities at the Ashwood Condos, Section 1 & 2 development in violation of provisions of 327 IAC 15-5-5 and 327 IAC 15-5-6. On February 10, 1999, IDEM received the NOI for the Ashwood Condos, Section 1 & 2 development. By signing and submitting the NOI, the Respondent certified, in substance, that an appropriate erosion control plan had been developed, submitted to the county Soil and Water Conservation District office, and that erosion control measures would be conducted by trained personnel. As indicated above, the Respondent has failed to implement adequate erosion control measures.

18.    A record review by the soil and water conservation district office had indicated that, as of September 24, 1999, the soil and water conservation district office did not have a copy of the erosion control plan. After issuance of the above referenced Notice of Violation, the Respondent provided documentation that indicated that a representative of the Respondent had delivered an erosion control plan to the soil and water conservation district on November 16, 1998. The Respondent re-submitted a copy of the erosion control plan on November 15, 1999. On December 28, 1999, the soil and water conservation district office reviewed the plan and approved the plan with comments.

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

2.     On November 15, 1999, and on January 10, 2000, Indiana Department of Natural Resources, Division of Soil Conservation staff conducted additional inspections of the Ashwood Condos development. The inspection reports indicated improvements to the site management for erosion and sediment control. However it was noted during both inspections that erosion and sediment control measures installed and maintained on individual building sites remained unsatisfactory. Within seven (7) days of the Effective Date, the Respondent shall develop, implement, and initiate maintenance of adequate erosion control measures at the Ashwood Condos, Section 1 & 2 development as provided by 327 IAC 15-5. The Respondent shall specifically assure that erosion and sediment control measures on individual building sites are installed and maintained adequately.

3.    The Respondent shall inspect the Ashwood Condos, Section 1 & 2 development on a weekly basis and after rainfall events and insure that all erosion and sediment control measures are properly maintained, including removing accumulated sediment from behind silt fences and from storm inlets, assuring that conveyance channels and swales are stabilized, and installing additional erosion control measures if determined necessary.

4.    Respondent is assessed a civil penalty of Seven Thousand Five Hundred Dollars ($7,500). 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.

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
    Paragraph 2;        $1,000 per week for failure to timely develop, implement, and initiate maintenance of adequate erosion control measures, including erosion and sediment controls on individual building sites, and

    Paragraph 3;        $1,000 per week for failure to inspect the Ashwood Condos, Section 1 & 2 development on a weekly basis and after rainfall events and insure that all erosion and sediment control measures are properly maintained, including removing accumulated sediment from behind silt fences and from storm inlets, assuring that conveyance channels and swales are stabilized, and installing additional erosion control measures if determined necessary.

6.    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.

7.    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

8.    In the event that the civil penalty required by paragraph 4 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.

9.    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.

10.    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.

11.    The Respondent shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights to the Subdivision 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.

12.    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 4 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 June 19, 2000___
                            Felicia A. Robinson
                            Assistant Commissioner of Enforcement
                    

Converted by Andrew Scriven