VIA CERTIFIED MAIL:

    327 IAC 15-5-2 applies to all persons who:

1.    do not obtain an individual NPDES permit under 327 IAC 15-2-6;

2.    meet the general permit rule applicability requirements under 327 IAC 15-2-3; and

3.    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 Cross Creek Commons Commercial Subdivision falls under the applicability requirements of 327 IAC 15-5-2. The construction activity at this site is not covered by an NPDES permit under 327 IAC 15-2-6, and it meets the general permit rule applicability requirements under 327 IAC 15-2-3. A Notice of Intent (NOI) letter received by the IDEM on behalf of Sturges, Griffin, Trent & Company, Inc., from Schenkel Shultz, Inc., on May 1, 1995, indicated that the construction project at the Cross Creek Commons Commercial Subdivision involves disturbing a total of nineteen and eight-tenths (19.8) acres during construction, thus subjecting the project to the requirements of 327 IAC 15.

    Based on the inspections and record reviews conducted by the IDEM and IDNR, you were found to be in violation of the provisions of the Indiana Code (IC) and Indiana Administrative Code (IAC) listed below.

1.    327 IAC 15-5-7 pertains to general conditions for construction activity erosion control measures. In essence it states that the operator shall develop an erosion control plan in accordance with the requirements under this section. The following requirements shall be met on all sites during the period when active land disturbing activities occur:

    a.    Sediment-laden water which otherwise would flow from the site shall be detained by erosion control practices appropriate to minimize sedimentation in the receiving stream. No storm water shall be discharged from the site in a manner causing erosion in the receiving channel at the point of the discharge.

    b.    Appropriate measures shall be taken by the operator to minimize or eliminate wastes or unused building materials from being carried from a site by run-off.

    c.    Sediment being tracked from a site onto public or private roadways shall be minimized.

    d.    Public or private roadways shall be kept clear of accumulated sediment. Bulk clearing of accumulated sediment shall not include flushing the area with water. Cleared sediment shall be returned to the point of likely origin or other suitable location.

    e.    All on-site storm drain inlets shall be protected against sedimentation with barriers meeting acceptable design criteria, standards, and specifications for that purpose.

    f.    Storm water drainage from adjacent areas that naturally pass through the site shall be controlled by diverting it around the disturbed area.

    g.    Run-off from a disturbed area shall be controlled by one or more of the measures required under this section.

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

    i.    All erosion control measures required to comply with this rule shall meet the design criteria, standards, and specifications for erosion control measures established by the IDEM in guidance documents. The erosion control plan shall include, but is not limited to, those measures required under this section.

    Sturges, Griffin, Trent & Company, Inc., failed to meet the above-listed requirements a, e, g, h, and i at the Cross Creek Commons Commercial Subdivision construction site, in violation of 327 IAC 15-5-7.

    A review conducted by an IDNR representative on or about March 6, 1996, of the Erosion and Sediment Control Plan submitted for the Cross Creek Commons construction site revealed inadequacies in the submitted plan. Specifically, it was noted that energy dissipaters were needed at each pipe or culvert outlet, that riprap chutes were needed wherever the grade was greater than two (2) percent, and that individual lot plans needed to developed to assist contractors/owners to recognize their responsibilities to the developer for erosion and off-site sedimentation control.

    In addition, on-site inspections of the Cross Creek Commons construction site were conducted on March 6, March 12, June 6, July 16, July 24, October 9, and October 23, 1996, and August 27, 1997. During each of these inspections, one (1) or more of the following deficiencies were noted:

    a.    the erosion control plan for the Cross Creek Commons construction site was not being effectively implemented,

    b.    evidence of sedimentation leaving the Cross Creek Commons construction site,

    c.    site conditions presented a high potential for off-site damage from sedimentation,

    d.    erosion and sediment control measures were not appropriately incorporated into the land disturbing activities at the construction site,

    e.    existing erosion control measures were not being properly maintained,

    f.    soil erosion control measures were not installed in the proper locations,

    g.    on-site drainage channels and outlets were not stabilized,

    h.    areas were not stabilized as specified in the construction sequence, or

    i.    the storm inlets at the Cross Creek Commons construction site were not adequately protected.

    IDNR held an on-site meeting with Sturges, Griffin, Trent & Company representatives on March 12, July 16, and October 23, 1996, to discuss the problems. A Warning of Noncompliance was issued on May 14, 1996 by the IDEM to Sturges, Griffin, Trent & Company regarding the noncompliance with 327 IAC 15-5-7 at the Cross Creek Commons construction site. In addition, IDEM sent Sturges, Griffin, Trent & Company a follow-up letter on June 17, 1996, that noted the continued noncompliance with 327 IAC 15-5-7.

2.    IC 13-30-2-1 prohibits, in substance, any person from discharging, emitting, causing, allowing, or threatening to discharge, emit, cause, or allow any contaminant or waste including any noxious odor, either alone or in combination with contaminants from other sources, into the environment or into any publicly-owned treatment works in any form which causes of would cause pollution which violates rules, standards, or discharge of emission requirements adopted by the appropriate board pursuant to this article.

    Sturges, Griffin, Trent & Company, Inc., allowed sedimentation to discharge from the Cross Creek Commons Commercial Subdivision construction site, as observed by IDNR representatives and described above, in violation of IC 13-30-2-1.

    In accordance with IC 13-30-3-3, the Commissioner is required to notify you in writing that he believes a violation exists and offer you an opportunity to enter into an Agreed Order providing for the actions required to correct the violations and for payment of a civil penalty. The Commissioner is not required to extend this offer for more than sixty (60) days.

    If settlement is not reached within sixty (60) days of your receipt of this Notice, the Commissioner may issue an Order pursuant to IC 13-30-3-4 containing the actions you must take to achieve compliance, the required time frames, and an appropriate civil penalty. Pursuant to IC 13-30-4-1, the Commissioner may assess penalties of up to $25,000 per day of any violation.

    The entry into an Agreed Order will prevent the necessity of an Order of the Commissioner being issued under IC 13-30-3-4, or the filing of a civil court action under IC 13-14-10 or IC 13-14-2-6. The advantages of entering into an Agreed Order are:

1.    You may not be required to admit that any violation occurred,

2.    The civil penalty may be less than that imposed under an Order of the Commissioner, and

3.    The timely entry into an Agreed Order could lead to a reduction in the assessed civil penalty.

    Please contact Ms. Susan Baker at 317/233-5974 or 1-800-451-6027, Ext. 35974, within fifteen (15) calendar days of your receipt of this Notice regarding your intent to settle this matter. If you are willing to resolve this matter as provided for in the enclosed Agreed Order, please sign and return it to the Office of Enforcement at the above address within the sixty (60) day settlement period.

                            FOR THE COMMISSIONER:

Date:             Signed on July 15, 1998
                        David J. Hensel
                        Director
                        Office of Enforcement

Enclosure

cc:    Allen County Health Department (w/o enclosure)
    Ms. Sharon Partridge, IDNR Division of Soil Conservation (w/enclosure)
    U.S. EPA Region V, Water Section (w/o enclosure)
    

Addresses for cc's:

Sharon Partridge, Resource Specialist
Division of Soil Conservation
Indiana Department of Natural Resources
2010 Inwood Drive
Fort Wayne, Indiana 46815

Converted by Andrew Scriven