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

COMMISSIONER OF THE DEPARTMENT    )
OF ENVIRONMENTAL MANAGEMENT,    )
                            )
        Complainant,            )
                            )
            v.                )    CAUSE NOS. B-2053, B-2054,
                            )    B-2100
                            )
CHRIS McGEHEE, PARTNER            )
LAND REALTY INC.,                )
                            )
        Respondent.                )

     Respondent is Land Realty Inc. which is partially owned by Chris McGehee (hereinafter referred to as "Respondent"), owner and developer of McCracken Farm, Cambell Farm, and Priddy Farm. The McCracken Farm, Cambell Farm and the Priddy Farm are located in Washington County, Indiana.

3.    The Indiana Department of Environmental Management ("IDEM") has jurisdiction over the parties and subject matter of this action.

     327 IAC 15-5-2 pertains to storm water run-off associated with construction activity. The requirements under this rule apply 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 requirement 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.

     327 IAC 15-2-5 (a) states, "Any person subject to the requirements of this article shall submit a [Notice of Intent] NOI letter that complies with this section, 327 IAC 15-3, and the additional requirements in any applicable general permit rule."

     327 IAC 15-2-5 (b) states, "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."

     327 IAC 15-2-5 (c) states, "The person responsible for the operation of the facility from which a point source discharge of pollutants and/or stormwater occurs must submit a NOI letter."

     327 IAC 15-2-3 states in part, "A general permit rule may regulate all designated categories of point sources for which a general permit rule exists...."

     The above noted subdivisions fall under the applicability requirements of 327 IAC 15-5- 2 in that five (5) or more acres of total land area are involved in construction activity at each site. The construction activity at these sites is not covered by an NPDES permit under 327 IAC 15-2-6, but meets the general permit rule applicability requirement under 327 IAC 15-2-3. The subdivision are categorized as point source dischargers of stormwater and therefore 327 IAC 15-2-5 (c) requires submission of a NOI letters for each site.

     327 IAC 15-5-6 pertains to the deadline for submittal of a NOI letter and additional information. All information required under 327 IAC 15-3 and 327 IAC 15-5-5 shall be submitted to the Commissioner prior to the initiation of land disturbing activities.

     327 IAC 15-5-5 states, in substance, that 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:

    1)    A brief description of the construction project, including, but not limited to, a statement of the total acreage of the site.

    2)    Estimated timetable for land disturbing activities and installation of erosion control measures.

    3)    Statement of the number of acres to be involved in land disturbing activities.

    4)    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.

    5)    Proof of publication in a newspaper of general circulation in the affected area that notified the public that a construction activity under this rule is to commence.

     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 the 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 specification for that purpose.

    f.    The following items apply during the time construction activity is taking place:

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

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

        3)    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.

        4)    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, a site map, a plan of final site conditions and a site construction plan, all as detailed in 327 IAC 15- 5-7 (d).

     On May 21, 1996, IDEM issued the Respondent a Warning of Noncompliance letter regarding the violations which had taken place at McCracken Farm. The Respondent has failed to submit a NOI letter to IDEM and an erosion control plan to IDNR prior to land disturbing activity. Initiation of land disturbing activity prior to submitting an NOI is a violation of 327 IAC 15-5-6. Initiation of land disturbing activity prior to submitting an erosion control plan is a violation of 327 IAC 15-5-5.

     On December 12, 1996, IDNR representatives and IDEM representatives conducted an inspection at the McCracken Farm Subdivision and noted that land disturbing activity had taken place. The inspection documented that gravel roads had been built, and mobile homes and utility lines had been installed throughout the subdivision. Constructing roads, and installing mobile homes and utility lines are part of land disturbing activities, and therefore are violations of 327 IAC 15-5-5 and 327 IAC 15-5-6.

     On November 13, 1997, IDEM received the NOI letter for the McCracken Farm subdivision which was requested in the May 21, 1996 warning letter. By the Respondent signing the NOI letter, the Respondent certified that the appropriate state, county, or local erosion control authority and the county SWCD office was sent a copy of the erosion control plan for review.

     As of January 12, 1998, the Washington County Soil and Water Conservation District had not received the erosion control plan as requested in the May 21, 1996 warning letter. Failure to submit an erosion control plan prior to land disturbing activities violates 327 IAC 15-5-5.

     On January 16, 1998, IDEM sent the Respondent a notice of deficiency letter stating that the NOI letter for the McCracken Farm was incomplete.

     On February 2, 1998, IDEM issued the Respondent a Notice of Sufficiency letter for the McCracken Farm. However, this Notice of Sufficiency letter was issued under the assumption that the erosion control plan was submitted to the SWCD as certified by the Respondent on the November 13, 1997 NOI letter.

     On May 21, 1996, an IDEM representative issued the Respondent a Warning of Noncompliance letter via certified mail regarding the violations that had taken place at Cambell Farm Subdivision. This letter stated that the Respondent failed to submit a NOI letter to IDEM and an erosion control plan to IDNR prior to land disturbing activity. Initiation of land disturbing activities prior to submitting a NOI letter is a violation of 327 IAC 15-5-6. Initiation of land disturbing activities prior to submitting an erosion control plan is a violation of 327 IAC 15-5-5.

     On December 12, 1996, IDNR representatives and IDEM representatives conducted an inspection at the Cambell Farm Subdivision and noted that land disturbing activity had taken place. The inspection documented that gravel roads had been built and mobile homes and utility lines had been installed throughout the subdivision. Further, the inspection documented a small amount of sediment leaving the site due to inadequate erosion control measures and entering waters of the state, in violation of 327 IAC 15-5-7. Constructing roads and installing mobile homes and utility lines are part of land disturbing activities, and therefore are violations of 327 IAC 15-5-6 and 327 IAC 15-5-7.

     On November 13, 1997, IDEM received the NOI letter for the Cambell Farm subdivision which was requested in the May 21, 1996 warning letter. By the Respondent signing the NOI letter, the Respondent certified that the appropriate state, county, or local erosion control authority and the county SWCD office was sent a copy of the erosion control plan for review.

     On December 19, 1997, IDEM issued the Respondent a Notice of Deficiency letter stating that the NOI letter for the Cambell Farm subdivision was incomplete.

     In January of 1998, the Washington County Soil and Water Conservation District received the erosion control plan as requested in the May 21, 1996. However, the erosion control plan was deficient and sent back to the Respondent.

     On February 2, 1998, IDEM issued the Respondent a Notice of Sufficiency letter for the Cambell Farm. However, this Notice of Sufficiency letter was issued under the assumption that the erosion control plan was submitted to the SWCD as certified by the Respondent on the November 13, 1997 NOI letter.

     On May 21, 1996, IDEM issued the Respondent a Warning of Noncompliance letter for the Priddy Farm subdivision noting that IDEM had not received a NOI letter and that the SWCD had not received the erosion control plan.

     On July 1, 1996, IDEM issued a letter to the Respondent's Engineer, Garber & Garber Consulting Engineers, Inc., stating that the McCracken Farm, M. H. Messersmith Farm, Priddy Farm, and Cambell Farm were required to comply with 327 IAC 15-5.

     On July 11, 1996, Garber & Garber submitted a letter and attached the NOI letter for the Priddy Farm. IDEM received their letter and the NOI letter on July 12, 1996.

     On July 15, 1996, the IDNR Urban Conservation Specialist conducted the erosion control plan review and found that the plan was deficient. On July 26, 1996, IDEM issued the Respondent a notice of deficiency letter stating that the plan was incomplete.

     On August 5, 1996, the Washington County Soil and Water Conservation District issued the Respondent a Notice of Sufficiency letter stating that the plan meets the general requirements.

     On August 28, 1996, IDEM received a letter from the Respondent's engineering firm regarding the additional information for the NOI letter. On September 4, 1996, IDEM issued the Respondent a Notice of Sufficiency letter stating that the NOI is complete.

     On September 26, 1996, IDEM issued the Respondent a Warning of Noncompliance letter regarding an inspection that was conducted by IDNR Urban Conservation Specialist. The inspector stated that the operator failed to control the sediment from leaving the site and entering county roads.

     On December 12, 1996, a IDNR Urban Conservation Specialist conducted an inspection and noted the following deficiencies:
    

         the plan is not being effectively implemented.

         there is evidence of sediment leaving the site.

         site conditions present a high potential for off-site damage from sedimentation.

         on-site drainage channels and outlets are not stabilized.

    In addition to the inspection report, a letter was attached stating that sediment was leaving the site at several locations, no erosion control measures were in place, and most of the on-site drainage channels were heavily gullied.

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

     Within thirty (30) days of the Effective Date, the Respondent shall submit erosion control plans to the Washington County SWCD for the McCracken Farm and Cambell Farm. Upon review, should the SWCD determine that the erosion control plans are deficient, the Respondent will submit modifications of the erosion control plan to the SWCD within ten (10) days of notification of any deficiency.

     After the Washington County SWCD has approved the erosion control plan for each subdivision, the Respondent shall immediately implement the erosion control plan and maintain the erosion control measures until the development of that subdivision is completed.

     Upon completion of construction activity at each subdivision, Respondent shall submit Notice of Termination (NOT) letters to IDEM as required by 327 IAC 15-5-11. Please submit the NOT letters to the addresses below:

            Indiana Department of Environmental Management
            Office of Water Management
            100 North Senate Avenue,
            P.O. Box 6015
            Indianapolis, IN 46206-6015
            Attention: Permits Sections, Storm Water Desk

            Brett DeBusk, Environmental Scientist
            Water Enforcement Section
            Office of Enforcement
            Indiana Department of Environmental Management
            100 N. Senate Avenue
            P. O. Box 6015
            Indianapolis, IN 46206-6015

     Respondent is assessed a civil penalty of Eleven Thousand Six Hundred Dollars ($11,600). 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:

         Violation                Penalty
        
        Paragraph 2                $500 per week for failure to timely submit all erosion control plans or modifications to the erosion control plans as requested.

        Paragraph 3                 $1,000 per week for failure to timely implement the erosion control plan and maintain erosion control practices.
                        
        Paragraph 4                $500 per week for failure to timely submit NOT letters for each subdivision.

     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.

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

9.    In the event that the civil penalty required by paragraph 5 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.

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. 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 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 A. Holloran, Attorney
Office of Legal Counsel                
Department of Environmental Management

Date: _______________                Date: _______________

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS ___________ DAY OF ______________________, 1998.

                            FOR THE COMMISSIONER:

                            Signed on May 20,1998
                            David J. Hensel
                            Director
                            Office of Enforcement