STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT
COMMISSIONER OF THE DEPARTMENT )
AGREED ORDER
) SS: OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
)
v. ) CAUSE NO. B-1830
Frank Schilling, owner/developer )
SCHILLTON HILLS )
SCHILLTON CONSTRUCTION CO. INC. )
)
Respondent. )
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.
Respondent is Schilling Construction Co. (hereinafter referred to as "Respondent"), who
owns Schillton Hills, a development located in Lake County, Indiana.
The Indiana Department of Environmental Management ("IDEM") has jurisdiction over
the parties and subject matter of this action.
Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation via Certified Mail on
September 22, 1998 to:
Mr. Frank Schilling,
Registered Agent for
Schilling Construction Co., Inc.
8925 Louis Court
St. John, Indiana 46373
327 IAC 15-5-2 pertains to storm water run-off associated with construction activity and
the need for appropriate erosion control measures. The requirements under this rule
apply to all persons who:
a. do not obtain an individual NPDES permit under 327 IAC 15-2-6;
b. meet the general permit rule applicability requirements under 327 IAC 15-2-3;
and
c. are involved in construction activity, which includes clearing, grading,
excavation, 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.
327 IAC 15-2-5(a) states that, "Any person subject to the requirements of this article shall
submit a NOI letter that complies with this section, 327 IAC 15-3, and the additional
requirements in any applicable general permit rule."
Schillton Hills is not covered by an individual NPDES Permit under 327 IAC 15-2-6, and
it meets the general permit rule applicability requirements under 327 IAC 15-2-3. Based
on the Notice on Intent (NOI) letter submitted to IDEM on September 6, 1994, the
retention and wetland basin project has a total acreage of fifty (50) acres. Thirty-two (32)
of those acres are to be disturbed during construction, thus subjecting the project to the
requirements of 327 IAC 15-5.
327 IAC 15-5-6 pertains to the deadline for submittal of a Notice of Intent (NOI) letter
and additional information and states that all information required under 327 IAC 15-3
and 327 IAC 15-5-5 shall be submitted to the Commissioner of IDEM prior to the
initiation of land disturbing activities.
According to counsel for Schilling Construction Co., Inc., construction at Schillton Hills
began in February 1996, and thus land has been disturbed under the meaning of this rule.
A letter purporting to be a NOI was submitted by the Respondent and received by IDEM
on September 6, 1994. That letter was found insufficient to serve as a NOI. IDEM
issued a Notice of Deficiency (NOD) letter dated October 4, 1994, concerning the NOI
for Schillton Hills. The additional NOI information required was detailed in a checklist
within the letter. On February 7, 1995, a subsequent letter was sent regarding the
deficiencies noted in the NOD letter requesting an amended NOI letter within eighteen
days.
Counsel for the Respondent contends that an amended NOI letter was submitted on
February 15, 1996. On February 27, 1996, IDEM issued a subsequent NOD and
requested an amended NOI containing the deficient information.
On September 18, 1997, IDEM's Office of Enforcement issued a Warning of
Noncompliance (WONC) to the Respondent for failure to submit all information to the
Commissioner, as required under 327 IAC 15-3 and Section 5 of this Rule, prior to the
initiation of land disturbing activities, in violation on 327 IAC 15-5-6.
On September 29, 1997, the Respondent submitted a reply to the WONC and copies of
the two prior letters submitted to IDEM on September 2, 1994 and February 15, 1996.
No additional information was submitted in the September 29, 1997 letter.
A follow-up warning was sent March 18, 1998, referencing the deficiencies noted in the
September 29, 1997, WONC. The letter gave an additional five days for the Respondent
to comply with 327 IAC 15-5-6.
On March 30, 1998, the Respondent submitted a letter to IDEM including copies of the
letters submitted to IDEM on September 2, 1994 and February 15, 1996. No additional
information was submitted in the March 30, 1998 letter, and Schillton Hills continued to
be in violation of 327 IAC 15-5-6.
On March 8, 1999 IDEM's Pretreatment and Urban Wet Weather Section issued a Notice
of Sufficiency for the Schillton Hills project after receiving an amended and complete
NOI for the project.
In recognition of the settlement reached, Respondent waives any right to administrative
and judicial review of this Agreed Order.
II. ORDER
This Agreed Order shall be effective ("Effective Date") when it is approved by the
Complainant or his delegate, and has been received by the Respondent. This Agreed
Order shall have no force or effect until the Effective Date.
A Notice of Termination shall be submitted to IDEM, for any and all projects completed,
in compliance with 327 IAC 15-5-11.
Respondent is assessed a civil penalty of Two Thousand Four Hundred Dollars ($2,400).
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.
Civil 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
In the event that the civil penalty required by paragraph 3 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.
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.
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.
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.
This Agreed Order shall remain in effect until Respondent has complied with all terms
and conditions of this Agreed Order.
By: _________________________ By: _________________________
Mark Stanifer, Section Chief
Office of Enforcement Printed: ________________________
Title: ________________________
Date: _______________ Date: _______________
COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:
Department of Environmental Management
By: _________________________ By: ________________________
Nancy Holloran
Office of Legal Counsel
Department of Environmental Management
Date: _______________ Date: _______________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS ___________ DAY OF ______________________, 1999.
FOR THE COMMISSIONER:
Signed 5/14/99
___________________________
Felicia Robinson George
Assistant Commissioner of Enforcement
Converted by Andrew Scriven