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. B-2110
                                )
COUNTRY DEVELOPMENT, INC.            )
MR. MARTIN RINEHART, PRESIDENT,        )
owner and developer of,                    )    
HUNTER'S COVE, SECTION 2, SUBDIVISION,    )
                                )
        Respondent.                    )

2.    Respondent is Country Development, Inc., Mr. Martin Rinehart, President (hereinafter referred to as "Respondent"), who owns and has developed the Hunter's Cove, Section 2 Subdivision located in Howard 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 July 7, 1997, IDEM issued a Notice of Violation via Certified Mail to:

            Mr. Martin Rinehart, President
            Country Development, Inc.
            44 South Center Street
            Flora, Indiana 46929

5.    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.

6.    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."

7.    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."

8.    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."

9.    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..."

10.    327 IAC 15-5-6, pertains to the deadline for submittal of a Notice of Intent (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.

11.    327 IAC 15-5-5 states, "In addition to the NOI letter requirements under 327 IAC 15-3, the following information must be submitted by the operator with an 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, country, 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."

12.    327 IAC 15-5-7 pertains to general conditions for construction activity erosion control measures. It states, in substance, 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 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 area.

        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).

13.    The Hunter's Cove, Section 2, Subdivision falls 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. The construction activity at this site 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 development is therefore categorized as point source discharge of stormwater and is required by 327 IAC 15-2-5(c) to submit a NOI letter.

14.    On April 2, 1996, IDNR staff and Howard County Soil and Water Conservation District (SWCD) staff inspected the Hunter's Cove, Section 2, Subdivision and observed and noted on the On-site Evaluation for Erosion and Sediment Control report the following:

    a)    There was no information on file at the Howard County SWCD office for this subdivision either in the form of a soils plat review or erosion control plan, in violation of 327 IAC 15-5-5. No erosion control plan was available during the evaluation, in violation of 327 IAC 15-5-10(a).

    b)    Storm sewer inlets were not adequately protected and since they appear to outlet off-site, sedimentation was of concern, in violation of 327 IAC 15-5-7(b)(1).

    c)    Sediment had been tracked on roadways from individual house construction and from machinery entering and leaving the Wildcat Creek Valley Golf Course; 2nd Nine, in violation of 327 IAC 15-5-7(b)(3).

15.    On April 15, 1996, the Howard County SWCD sent the Respondent a letter which included a copy of the on-site erosion control review at Hunter's Cove Subdivision. The letter also informed the Respondent of the violations of 327 IAC 15-5-7 that had been observed. It also informed the Respondent of its duty to submit an NOI letter to IDEM.

16.    On June 5, 1996, IDEM received from the Respondent the NOI letter and additional information for subdivisions in the Walnut Estates development including the Hunter's Cove Section II Subdivision.

17.    Respondent submitted an NOI letter covering two sections of the subdivision and Hunter's Cove Section 2 in late May, 1996. Respondent contends that the April 2, 1996, inspection conducted by the Howard County SWCD was of another pre-existing section of the subdivision for which the Respondent understood that an NOI letter was not required and that dirt work on Hunter's Cove Section 2 was not commenced until May 31, 1996, at which time the NOI letter covering two sections of the subdivision and Hunter's Cove Section 2 had been sent to IDEM. The Respondent also noted that it was not informed until October 29, 1996, that a separate NOI letter was required for each section within the overall subdivision.

18.    On August 29, 1996, IDEM sent the Respondent a Warning of Noncompliance via certified mail which informed the Respondent that the IDNR had notified IDEM that the Hunter's Cove, Section 2, Subdivision was out of compliance with NPDES General Permit Rule 327 IAC 15-5 (Rule 5). As of that date, the Respondent had not submitted the amendments to its Soil Erosion Control Plan that the Respondent had been requested to submit to the Howard County SWCD, although earth disturbing activity had already begun. The Warning of Noncompliance also noted that, according to IDNR staff, earth disturbance began in mid-June of 1996, with no sediment controls in place, no seeding done, and the project's storm sewers, which outlet to Wildcat Creek, not protected from sediment, all of which are violations of 327 IAC 15-5-7.

19.    On October 10, 1996, IDNR staff and Howard County SWCD staff conducted a follow- up inspection of the Hunter's Cove, Section Two, Subdivision and observed and noted on the On-site Evaluation for Erosion and Sediment Control report the following:

    a)    A sediment delta was present in the West Fork of the Little Wildcat Creek on both sides of a riprap storm water outlet channel for this project, in violation of 327 IAC 15-5-7(b)(1). This storm outlet and the stream are located on the east side of the subdivision. Sediment within this delta averaged approximately 12 feet wide, 30 feet long, with a thickness of 1 to 2 feet depth.

    b)    No sediment control measures were present on site to minimize sediment from entering the curb storm water outlets, or from entering onto the roadway, in violation of 327 IAC 15-5-4(b) and 327 IAC 15-5-7. The cul-de-sac area was completely covered in sediment in several places. In addition, the east slope was eroding without sediment controls to prevent sediment from leaving the site. Only a few sparse weeds and oats from an attempted earlier seeding were present on the east slope.

    c)    Individual home site construction was in progress on several lots, with no erosion control practices being used. The original Erosion Control Plan called for temporary seeding of lots, mulch seeding of road right-of-ways, and stone inlet protection around stormwater inlets. No sediment or erosion control measures were present at the time of the on-site visit.

20.    The October 10, 1996, on-site Evaluation for Erosion and Sediment Control report also noted that no response had been received as requested in the August 29, 1996, Warning of Noncompliance and no revised Erosion Control Plan had been received.

21.    On October 29, 1996, IDEM sent the Respondent a Warning of Noncompliance for violations of 327 IAC 15-5, which informed the Respondent that 327 IAC 15-5-7(c) requires that "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 Warning of Noncompliance dated October 29, 1996, also informed the Respondent that IDNR staff had reported that during the October 10, 1996, inspection of the site, it was observed that no soil erosion control measures had been installed, deposits of sediment were present in the West Fork Little Wildcat Creek, and that the revised soil erosion control plan that had been requested by the Howard County SWCD had not been received.

22.    Also on October 29, 1996, IDEM sent the Respondent a letter which informed the Respondent that separate NOI letters and separate filing fees were required for each of the three subdivisions in Walnut Estates, including the Hunter's Cove subdivision.

23.    On October 31, 1996, the Respondent submitted a letter in regards to Hunter's Cove, Section II, Subdivision which stated, in part, "In reference to your [IDEM's] letter dated October 29, 1996, County Development President, Berl Buis and CEO Martin Rinehart, met with the Engineer, Bill Bassett, in Kokomo today and are taking the necessary steps to meet the requirements stated in your letter."

24.    On November 7, 1996, the Howard County SWCD sent the Respondent a letter in regard to Hunter's Cove, Section Two Subdivision, which informed the Respondent that an on- site review was conducted on October 10, 1996, by Howard County SWCD staff and IDNR staff which found off-site sedimentation and erosion control measures were not in place. A copy of the on-site review was included.

25.    On December 4, 1996, IDNR and the Howard County SWCD staff inspected the Hunter's Cove, Section Two, Subdivision and observed and noted on the On-site Evaluation for Erosion and Sediment Control report the following:

    a)    The sediment bar was still noted in the creek, as well as in the plunge pit at end of outlet pipe from the subdivision. The largest portion of the sediment in the creek and rock lined channel had been washed out by high volume water flow. Sediment was also leaving the individual house lots and entering onto roadways in violation of 327 IAC 15-5-7.

    b)    Even though efforts had been made to protect stormwater inlets, no sediment controls had been installed on the east slope to prevent off-site sedimentation damage. Rills have eroded along this slope that lead directly to the rock-lined channel and creek corridor.

    c)    Sediment was still being tracked onto roadways from construction traffic not utilizing rock drives, or from improperly installed construction entrances.

    d)    Erosion control measures are not being incorporated into house construction activity. Silt fence could have been used to prevent soil from eroding off home sites and unprotected slopes. Temporary seeding and mulch seeding which was indicated on the original Erosion Control Plan, was not placed as they should have been.

26.    On December 11, 1996, the Howard County SWCD sent the Respondent a letter which included a copy of the December 4, 1996, on-site evaluation and commentary for erosion and sediment control at Hunter's Cove, Section Two, Subdivision. The letter outlined the violations of 327 IAC 15-5-7 that were observed and noted during the December 4, 1996, inspection.

27.    In December of 1996, the Respondent submitted a revised soil erosion control plan to the Howard County SWCD. On December 11, 1996, the Respondent submitted separate NOI letters for three projects including the Hunter's Cove, Section II, Subdivision.

28.    Also on December 11, 1996, the Respondent submitted a letter which stated that it had installed street curb inlet protection in Hunter's Cove, Section II, Subdivision and that it was installing stone drives. The Respondent also stated in the letter that the developer had installed temporary seeding along the top of the east bank slopes, berms, and slope base in May with oats. The slope base cover was destroyed by the Wildcat Golf Course contractor during the summer. Both the slope base and mid-berm were reseeded in late October with winter rye.

29.    The above noted inspection reports, Warning of Noncompliance letters, and other letters from IDNR, IDEM, and the Howard County SWCD document the Respondent's violations of 327 IAC 15-5-7 (failure to adequately implement the erosion control plan and prevent sediment from leaving the site) at the Hunter's Cove, Section 2, Subdivision.

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

2.    The Respondent shall immediately take appropriate steps to comply with 327 IAC 15-5-7, including implementing the Erosion Control Plan for the Hunter's Cove Section 2, Subdivision, complying with the plan, and maintaining the appropriate erosion control measures, until the development of the subdivision is completed. Upon completion of construction activity in the subdivision, Respondent shall submit a notification of termination letter to IDEM as required by 327 IAC 15-5-11.

3.    All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:
                Section Chief, Water Enforcement
                Office of Enforcement, IGCN, Rm. 1315
                Indiana Department of Environmental Management
                100 N. Senate Avenue
                P. O. Box 6015
                Indianapolis, IN 46206-6015

4.    Respondent is assessed a civil penalty of Three Thousand Dollars ($3,000). 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.

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                        Penalty
        
        Paragraph 2                $1,000 per week for failure to                                  implement the Erosion Control Plan, comply with the plan, or maintain erosion control practices at the subdivision.

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 46206-7060

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 Hunter's Cove, Section 2 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 until Respondent has complied with the requirements of paragraphs 2 through 4 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 ____________________, 199_.

                            For the Commissioner,

                            Signed on 2/27/98
                            David J. Hensel
                            Director
                            Office of Enforcement
                    

Converted by Andrew Scriven