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. 2000-9363-W
)
COBBLESTONE DEVELOPERS LLC, )
)
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.
2. Respondent is Cobblestone Development LLC, (ARespondent@), which is the developer and operator for the Cobblestone Phase 1 development located north of County Road 600 N. and east of County Road 500 E. in Noble 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 June 28, 2000, IDEM issued a Notice of Violation via Certified Mail to:
Karl Bandermer and to: Barry Sturges, Agent
Cobblestone Developers LLC Cobblestone Developers LLC
Suite 610 Suite 610, Metro Building
202 W. Berry Street 202 W. Berry Street
Fort Wayne IN 46802 Fort Wayne, IN 46802
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 15-5-1, 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.
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. The Cobblestone Phase 1 development 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.
11. Pursuant to 327 IAC 15-5-7, general conditions for construction activity erosion control measures, 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.
12. 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.
13. Pursuant to 327 IAC 15-5-10(b), any person violating any of the provisions of this rule shall be subject to enforcement and penalty under IC 13-7-10-5, IC 13-7-11, IC 13-7-12, 327 IAC 15-1-4, or any combination thereof.
14. 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.
15. During inspections conducted by IDNR and the Noble County SWCD on August 25, 1997, October 30, 1997, November 4, 1997, January 30, 1998, February 25, 1998, March 6, 1998, April 8, 1998, April 16, 1999, October 26, 1999, and December 7, 1999, it was noted that erosion control measures were inadequately implemented and maintained, in violation of 327 IAC 15-5-7.
16. 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.
17. Pursuant to 327 IAC 2-1-6(a)(1), all surface 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 that will settle to form putrescent or otherwise objectionable deposits, that are in amounts sufficient to be unsightly or deleterious, that produce color, odor or other conditions in such degree as to create a nuisance, which are in amounts sufficient to be acutely toxic to, or to otherwise severely injure or kill aquatic life, other animals, plants, or humans.
18. During inspections conducted by IDNR and the Noble County SWCD on February 25, 1998, March 6, 1998, April 16, 1999, October 26, 1999, and December 7, 1999, offsite sedimentation was observed in wetland areas and in ditches on or near the property, in violation of IC 13-18-4-5, 327 IAC 2-1-6(a)(1), and 327 IAC 15-5-7.
19. IDEM, IDNR, and Noble County SWCD staff met with the Respondent’s representatives on August 7, 2000. On September 8, 2000, the Respondent submitted a letter to IDEM that stated that the Respondent had not received copies of the inspection reports for the October, 30, 1997, March 6, 1998, April 8, 1998, and the April 16, 1999 site evaluations. The Respondent stated that of the site evaluations received, action was taken by the
Respondent to comply. The Respondent contended that they had made attempts to meet with IDNR and SWCD evaluators for on-site inspections and discussions, however those requests were not granted, or if they were granted, not in a timely fashion. IDEM contends that it is the Respondent’s responsibility to ensure that required erosion control measures are implemented and maintained at all times by personnel trained in erosion control practices, as certified by the Respondent on its NOI for the development.
20. 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. Within 7 days of the Effective Date, the Respondent shall implement and initiate maintenance of adequate erosion control measures at the Cobblestone Phase 1 development as specified in the approved erosion control plan and provided by 327 IAC 15-5, including ensuring all deficiencies noted during the IDNR Stormwater Specialist’s site visits conducted during August of 2000, are corrected. Pursuant to 327 IAC 15-5-5, and the NOI letter submitted for the development, the Respondent shall assure that implementation of the erosion control plan will be conducted by personnel trained in erosion control practices. It is the Respondent's responsibility to comply with 327 IAC 15-5, and assure that maintenance of remaining erosion control measures are properly maintained. Pursuant to 327 IAC 15-5-10, IDNR staff may inspect the development at reasonable times.
Should IDNR staff inspect the development and evaluate any area of erosion and sediment control management as unsatisfactory and in violation of 327 IAC 15-5, IDNR staff will provide a copy of the evaluation report to the Respondent. The Respondent may contact IDNR staff to discuss any evaluation report, or to schedule an on-site meeting with the IDNR staff and the Respondent to review the inspection report and the status of the erosion and sediment control measures.
3. The Respondent shall inspect the Cobblestone Phase 1 development on a weekly basis and after rainfall events to 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. The weekly inspections shall be maintained in a log for documentation and review purposes. These provisions shall remain in effect until the Respondent submits notification of completion of the construction activity as provided by 327 IAC 15-5-11 and IDEM approves the adequacy of the remaining erosion control measures as provided by 327 IAC 15-5-8(b).
4. Respondent is assessed a civil penalty of Seven Thousand Four Hundred Seventy
Five Dollars ($7,475). Within thirty (30) days of the Effective Date of this Agreed Order,
the Respondent shall pay an initial installment penalty payment of Two Thousand Dollars
($2,000) to the Environmental Management Special Fund. Thereafter, the Respondent
shall pay installment penalty payments to the Environmental Management Special Fund of Two Thousand Dollars ($2,000) within four (4) months of the Effective Date of this Agreed Order, Two Thousand Dollars ($2,000) within seven (7) months of the Effective Date of this Agreed Order, and One Thousand Four Hundred Seventy Five Dollars ($1,475) within ten (10) months after the Effective Date of this Agreed Order, until the total assessed civil penalty is paid in full.
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
PenaltyParagraph 2; $500 per week for failure to make good faith efforts, as determined by IDNR and IDEM, to timely implement and initiate maintenance of adequate erosion control measures, or to timely install all additional erosion control measures and initiate any additional maintenance procedures that may be included in the approved erosion control plan,
Paragraph 3; $500 per week for failure to inspect the Cobblestone Phase 1 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 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 project 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 and Complainant issues a Resolution of Cause letter.
TECHNICAL RECOMMENDATION: RESPONDENT:
Department of Environmental Management Cobblestone Development LLC
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
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 8/30/01_______
Felicia A. Robinson
Assistant Commissioner of Enforcement