STATE
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BEFORE
THE INDIANA DEPARTMENT
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OF ENVIRONMENTAL
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COMMISSIONER OF THE DEPARTMENT |
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OF ENVIRONMENTAL
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Complainant, |
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v. |
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CASE NO. 2002-11543-W |
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PERRY CRUSE, |
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FOX RUN NORTH and SOUTH
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Respondent. |
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NOTICE AND ORDER OF THE
COMMISSIONER OF THE
DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT
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VIA CERTIFIED MAIL No.
________________________ |
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To: |
Mr. Perry Cruse |
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This Notice and Order of
the Commissioner of the Indiana Department of Environmental Management
("Order") is issued against Perry Cruse (“Respondent”) pursuant to IC
13-30-3-4, IC 13-30-3-10, and IC 13-30-3-11, and is based on violations of environmental
rules and statutes found during an investigation conducted by the Indiana
Department of Environmental Management (“IDEM”). Specifically, the
investigation revealed that the Respondent violated 327 IAC 15-5-7, IC
13-18-4-5, IC 13-30-2-1, 327 IAC 2-1-2(1), 327 IAC 2-1-6(a)(1), and 327 IAC
5-2-2, as specified below:
FINDINGS OF VIOLATION
1.
Complainant is the Commissioner of IDEM, a department of the
State of
2.
Respondent is the developer and operator of a project area
named Fox Run North and South Subdivisions, located in Morgan County near the
Mapleturn Road and Lincoln Hill Road intersection, approximately 3 miles
northeast of Martinsville, Indiana (“the Site”).
3.
IDEM has jurisdiction over the parties and subject matter of
this action.
4.
All references in these Findings of Violation to 327 IAC
15-5 and its various parts and subparts are to the version in effect prior to the
rule change effective on November 26, 2003.
5.
Pursuant to 327 IAC 15-5-7(b), the following requirements
shall be met on all sites during the period when active land disturbing
activities occur:
a.
Sediment-laden water shall be detained on-site by erosion control
practices that minimize sedimentation in the receiving stream.
b.
Appropriate measures shall be taken to minimize or eliminate
wastes or unused building materials being carried from the site by run-off.
c.
Sediment tracked from the site onto public or private
roadways shall be minimized.
d.
Public and private roadways shall be kept clear of
accumulated sediment.
e.
All on-site storm drains shall be protected against
sedimentation by appropriate and acceptable methods.
f.
Storm water drainage from adjacent areas that naturally pass
through the site shall either be diverted from disturbed areas or the existing
channel must be protected or improved to prevent erosion and sedimentation from
occurring.
g.
Run-off from a disturbed area shall be controlled by either
appropriate vegetative practices, the implementation of an erosion control plan
that includes appropriate erosion control measures, or both.
6.
Pursuant to 327 IAC 15-5-7(c), during the period of
construction at the Site, all erosion control measures necessary to meet the
requirements of this rule shall be maintained by the operator.
7.
Site inspections conducted by representatives of IDEM, the
Indiana Department of Natural Resources, and/or the Morgan County Soil and
Water Conservation District between October 31, 2001 and June 28, 2002,
revealed that the Respondent failed to implement and maintain erosion control
measures at the Site necessary to satisfy the requirements of 327 IAC
15-5-7(b), in violation of 327 IAC 15-5-7(b) and (c).
8.
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 IC 13-18-4-1 and IC 13-18-4-3.
9.
Pursuant to IC 13-30-2-1, it is unlawful for any person to
discharge, emit, cause, allow, or threaten 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 in any
form that causes or would cause pollution that violates or would violate rules,
standards, or discharge or emission requirements adopted by the appropriate
board under the environmental management laws.
10.
Pursuant to 327 IAC 2-1-2(1), for all waters of the state,
existing beneficial uses shall be maintained and protected. No degradation of water quality shall be
permitted which would interfere with or become injurious to existing and
potential uses.
11.
Pursuant to 327 IAC 2-1-6(a)(1):
All 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:
(a)
that will settle to form putrescent or otherwise objectionable
deposits;
(b)
that are in amounts sufficient to be unsightly or
deleterious;
(c)
that produce color, visible oil sheen, odor, or other
conditions in such degree as to create a nuisance;
(d)
which are in amounts sufficient to be acutely toxic to, or
to otherwise severely injure or kill aquatic life, other animals, plants, or
humans; or
(e)
which are in concentrations or combinations that will cause
or contribute to the growth of aquatic plants or algae to such degree as to
create a nuisance, be unsightly, or otherwise impair the designated uses.
12.
Pursuant to 327 IAC 5-2-2, any discharge of pollutants into
waters of the state as a point source discharge, except for exclusions
contained in 327 IAC 5-2-4, is prohibited unless in conformity with a valid
National Pollutant Discharge Elimination System (“NPDES”) permit obtained prior
to the discharge.
13.
On October 31, 2001, and February 19, 2002, Army Corps of
Engineers (“ACE”) staff conducted inspections at the Site, noting that the
Respondent had discharged approximately 109 cubic yards of fill material,
affecting 2,422 linear feet of an unnamed tributary to Grassy Creek, a water of
the state, in the construction of three dams, without a permit from the ACE,
and without a Section 401 Water Quality Certification from IDEM. The
unpermitted discharge of fill material into waters of the state is in violation
of IC 13-18-4-5, IC 13-30-2-1, 327 IAC 2-1-2(1), 327 IAC 2-1-6(a)(1), and 327
IAC 5-2-2.
14.
An application for Section 401 Water Quality Certification,
which included a proposed mitigation plan, was submitted by the Respondent for
the construction project referenced in Paragraph No. 13 above (designated as
IDEM Project No. 2002-100-55-AJB-B) on June 16, 2004. In a correspondence dated November 22, 2004,
IDEM granted a Section 401 Water Quality Certification to the Respondent,
subject to the “General” and “Project-specific” conditions contained therein,
for IDEM Project No. 2002-100-55-AJB-B.
15.
On August 22, 2002, a Notice of Violation was issued,
pursuant to IC 13-30-3-3 to the Respondent for the violations cited above. The Respondent received this Notice of
Violation on August 26, 2002.
16.
The Notice of Violation contained an offer to enter into an
Agreed Order in accordance with IC 13-30-3-3.
IDEM subsequently provided a proposed Agreed Order to the Respondent.
17.
More than 60 days have elapsed since Respondent was offered
the opportunity to enter into an Agreed Order.
18.
The Respondent has not entered into an Agreed Order resolving
the violations cited above.
19.
IDEM is aware that Respondent has filed for bankruptcy under
Chapter 7 of the
ORDER
1.
The Respondent shall, upon the Effective Date of this Order, maintain full
compliance with all applicable administrative rules and statutes, including IC
13-18-4-5, IC 13-30-2-1, 327 IAC 2-1-2(1), 327 IAC 2-1-6(a)(1), 327 IAC 5-2-2,
and 327 IAC 15-5-7.
2.
Upon the Effective Date, the Respondent shall immediately
begin implementation of the approved Mitigation Plan (“MP”) and shall adhere to
the specific milestone dates of the schedule contained therein. Additionally, the Respondent shall adhere to
the “General” and “Project-specific” conditions contained in the November 22,
2004, correspondence from IDEM to Respondent, granting a Section 401 Water
Quality Certification to Respondent for IDEM Project No. 2002-100-55-AJP-B,
attached hereto and incorporated by reference as “Attachment A”.
3.
Upon completion of each action contained in the approved MP,
the Respondent shall submit notification of completion of the action to IDEM
within 30 days. The notification shall
include a description of the action completed, and the date it was completed.
4.
In the event that IDEM determines that the success criteria
contained in the approved MP are not fully achieved at the conclusion of the
mitigation area monitoring provided for by the approved MP, the Respondent
shall, within 60 days of receipt of notification from IDEM that success
criteria are not fully achieved, develop and submit to IDEM, for approval, an
additional plan (“Action Plan”) that includes either a description of
corrective actions that will be taken in order to fully achieve the success
criteria, along with an implementation and completion schedule, or a new
mitigation plan that includes, to the extent necessary, the provisions of the
original MP, along with an implementation and completion schedule.
5.
The Action Plan shall be subject to the approval of
IDEM. If the Action Plan is deemed
inadequate by IDEM, a revised Action Plan shall be submitted within 15 days of
receipt of notice from IDEM of the inadequacies thereof. If, after submission
of the first revised Action Plan, IDEM still finds the Action Plan to be
inadequate, then IDEM will request further modification of the Action Plan as
necessary to meet IDEM’s requirements, and require re-submittal of the Action
Plan by a specific date. If the
subsequently submitted second revised Action Plan does not meet IDEM’s
approval, IDEM will suggest specific modifications to be made to the Action
Plan and require re-submittal by a specific date. If, by the specified date, the Respondent
does not submit a third revised Action Plan that incorporates the
IDEM-suggested modifications or submit an alternative adequate Action Plan, as
determined by IDEM, the IDEM-suggested modifications will be deemed
incorporated into the Action Plan.
6.
The Action Plan shall, upon approval by IDEM’s Water Quality
Standards Section, be incorporated into this Agreed Order and shall be deemed
an enforceable part thereof. The
Respondent, upon receipt of written approval from IDEM, shall immediately implement
the approved Action Plan and adhere to the milestone dates contained therein.
7.
Upon completion of each action contained in the approved
Action Plan, the Respondent shall submit notification of completion of the
action to IDEM. The notification shall
include a description of the action completed, and the date it was completed.
8.
All submittals required by this Order, unless notified
otherwise in writing, shall be sent to:
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Dave Knox |
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Office of Enforcement |
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Indiana Department of
Environmental Management |
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Mail Code 60-02 |
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9.
This Order shall apply to and be binding upon the
Respondent, its successors and assigns.
No change in ownership, corporate, or partnership status of the Respondent shall
in any way alter its status or responsibilities under this Order.
EFFECTIVE
DATE OF ORDER
Pursuant to IC 13-30-3-5,
this Order takes effect 20 days following receipt unless you request review of
this Order, before the twentieth day after receipt, by filing a written request
for review with the Office of Environmental Adjudication, and serving a copy of
the request for review upon the Commissioner of the Indiana Department of
Environmental Management. You may request
that the Office of Environmental Adjudication conduct a hearing to review this
Order, under IC 4-21.5, in its entirety, or you may limit your request for
review to specific findings and/or orders contained in this Order. Requests for review must be submitted to the
Office of Environmental Adjudication and the Commissioner of the Indiana
Department of Environmental Management at the following addresses:
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Director |
Commissioner |
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Office of Environmental
Adjudication |
IDEM |
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Room 1049 |
Mail Code 50-01 |
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Failure to properly submit a
request for review, before the twentieth day following receipt of this Order of
the Commissioner, waives your right to administrative review of this Order and
your right to judicial review of the Order.
The petition for administrative review must contain the following
information:
1.
Name, address, and telephone number of each person filing
the petition.
2.
Identification of the interest of each petitioner in the
subject of the petition.
3.
Statement of facts demonstrating that the petitioner is:
A.
a person to whom the order is directed;
B.
aggrieved or adversely affected by the order; or
C.
entitled to review under any law.
4.
Statement with particularity of the legal issues proposed
for consideration in the proceedings.
The petition for administrative
review should also contain the following information:
1.
Identification of any persons represented by the person
making the request.
2.
Statement identifying the person against whom administrative
review is sought.
3.
A copy of the notice of the commissioner’s action issued by
the department of environmental management which is the basis of the petition
for administrative review.
4.
Statement indicating the identification of petitioner’s
attorney or other representative.
If you have procedural or
scheduling questions regarding your request for review you may contact the
Office of Environmental Adjudication at (317) 232-8591.
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Dated at |
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Signed 12/19/05 |
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Thomas W. Easterly |
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Commissioner |
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cc: |
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Morgan |
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Indiana Department of
Natural Resources |
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Larry J. Kane |
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ATTACHMENT A
November 22, 2004, correspondence from IDEM, granting
Section 401 Water Quality Certification to the Respondent for IDEM Project No. 2002-100-55-AJP-B