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. 2000-9361-W

)

)

B. SCOTT MELLO (d/b/a KATN, 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. The 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.

2. The Respondent is B. Scott Mello (d/b/a KATN, Inc., and hereinafter referred to as "Respondent"), who owns and is developing the Castleberry West Subdivision located approximately 0.5 mile north of Guilford on the east side of Indiana State Road 1 in Dearborn County, Indiana ("Site").

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 July 10, 2000, IDEM issued a Notice of Violation via Certified Mail to:

B. Scott and Janet S. Mello

d/b/a KATN, Inc.

4586 Hanley Road

Cincinnati, Ohio 45247

5. An investigation and record review, on May 17, 1999, were conducted by a representative of the IDEM’s Office of Water Management. The following violations were in existence or observed at the time of the investigation and record review:

A. Pursuant to 327 IAC 15-2, a general permit rule may regulate all designated categories of point sources for which a general permit rule exists, including construction activity. This rule also requires a Notice of Intent (NOI) letter to be submitted by anyone subject to the provisions of 327 IAC 15.

Pursuant to 327 IAC 15-3, an NOI letter that includes, but is not limited to, the location of the facility for which the NOI is being submitted, the name of and other contact information for the responsible person, and the receiving stream for the discharge, shall be submitted to IDEM.

Pursuant to 327 IAC 15-5-5, an NOI letter for storm water run-off associated with construction activity shall also include a brief description of the project, an estimated timetable, the number of acres of land to be disturbed, a written certification from the operator that the erosion control plan complies with the requirements of 327 IAC 15-5-7, 327 IAC 15-5-9, and all other applicable state, county, and local erosion control requirements and verifying that copies of the erosion control plan have been sent to an appropriate state, county, or local erosion control authorities and the soil and water conservation district, and proof of newspaper publication of a notice to the public that construction activity under Rule 5 is to commence.

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

The Respondent failed to submit an NOI letter for the Site, pursuant to 327 IAC 15-2, 327 IAC 15-3, 327 IAC 15-5-5, and 327 IAC 15-5-6, in violation of 327 IAC 15-2, 327 IAC 15-3, 327 IAC 15-5-5, and 327 IAC 15-5-6.

B. Pursuant to 327 IAC 15-5-7, the operator of a site subject to the requirements of 327 IAC 15 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.

The Respondent failed to develop an erosion control plan for the Site, pursuant to 327 IAC 15-5-7, in violation of 327 IAC 15-5-7.

6. On or about April 1, 1999, a representative from the Indiana Department of Natural Resources (IDNR) was informed that construction activity had occurred at the Site.

7. As of April 1, 1999, no NOI letter or erosion control plan had been submitted for this project.

8. On April 1, 1999, IDNR sent a letter to the Respondent informing him that the Site met the applicability requirements of 327 IAC 15-5 and requesting that an NOI letter and erosion control plan be submitted to the appropriate agencies by April 29, 1999.

9. No response to IDNR=s letter was received from the Respondent.

10. On May 17, 1999, IDEM issued to the Respondent a Warning of Noncompliance (WONC) regarding the Respondent’s initiation of land disturbing activities and lack of NOI letter and erosion control plan. The Respondent was advised to submit the required paperwork by May 31, 1999.

11. On May 21, 1999, the Respondent received the WONC issued by IDEM.

12. No response to IDEM=s WONC was received from the Respondent.

13. On September 19, 2000, Representatives from IDEM, IDNR, and the Dearborn Soil and Water Conservation District met with the Respondent at the Site. The area of disturbance was calculated to be 5.9 acres and the disposition of the Site prior to the Respondent’s purchase and initiation of development of the site was discussed. IDNR representatives observed that the Site was sufficiently stabilized. It was also determined that this action should be directed solely to B. Scott Mello.

14. In recognition of the settlement reached, the 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 327 IAC 15-2, 327 IAC 15-3, 327 IAC 15-5-5, 327 IAC 15-5-6, and 327 IAC 15-5-7.

    3. Within thirty (30) days of the Effective Date, the Respondent shall, pursuant to 327 IAC 15-3 and 327 IAC 15-5-5, submit an NOI letter to IDEM at the following address:

      4. Susan J. Baker

      Senior Environmental Manager

      Indiana Department of Environmental Management

      Office of Enforcement, Room 1315

      P.O. 6015

      Indianapolis, Indiana 46206-6015

    4. Within thirty (30) days of the Effective Date, the Respondent shall, pursuant to 327 IAC 15-5-7, submit an erosion control plan to the Dearborn County Soil and Water Conservation District at the following address:

      5. Dearborn County Soil and Water Conservation District

      10729 Randall Avenue, Suite 2

      Aurora, Indiana 47001

    5. The Respondent is assessed a civil penalty of One Thousand Dollars ($1,000). 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:

      7. Violation Penalty

      Failure to comply with Paragraph 2 $500 per each week (or part thereof) past the 30-day deadline that the Respondent fails to submit the NOI letter.

      Failure to comply with Paragraph 3 $500 per each week (or part thereof) past the 30-day deadline that the Respondent fails to submit the erosion control plan.

    7. 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 any 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 13-30-4.

    8. Civil and stipulated penalties are payable by check to the Environmental Management Special Fund. Checks shall include the Case Number of this action and shall be mailed to:

      9. 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 Section II, Paragraph 5, 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.

    10. This Agreed Order shall apply to and be binding upon the Respondent, his officers, directors, principals, agents, successors, subsidiaries, and assigns. The Respondent’ 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 Respondents 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 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. This Agreed Order shall remain in effect until the Respondent has complied with all terms and conditions of this Agreed Order.

Agreed Order 2000-9361-W

B. Scott Mello (d/b/a as KATN, Inc.)

Signature Page

TECHNICAL RECOMMENDATION: RESPONDENT:

Department of Environmental Management

By: By:

Mark Stanifer

Section Chief, Water Section Printed:

Office of Enforcement

Title:

Date: Date:

 

 

 

COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:

Department of Environmental Management

By: By:

Office of Legal Counsel

Date: Date:

 

 

 

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS DAY OF , 2000.

 

FOR THE COMMISSIONER:

 

Original signed on November 15, 2000

Felicia A. Robinson

Assistant Commissioner

Office of Enforcement