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STATE OF |
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BEFORE THE INDIANA DEPARTMENT |
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COMMISSIONER OF THE DEPARTMENT Complainant, v. KENROCK, INC., Respondent. |
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NOTICE AND ORDER
OF THE
COMMISSIONER OF
THE
DEPARTMENT OF
ENVIRONMENTAL MANAGEMENT
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Via Certified Mail #: |
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To: |
Mr. Frank Lisa, President and Registered Agent Kenrock Inc. |
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Via Certified Mail #: |
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To: |
Mr. Frank Lisa, Individual |
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This Notice and Order of the Commissioner
of the Indiana Department of Environmental Management (“Order”) is issued
against Kenrock Inc. and Frank Lisa for violations of
the Indiana Environmental Management Act.
This Order is issued pursuant to Indiana Code (“IC”) 13-30-3-4, IC
13-30-3-10, and IC 13-30-3-11, and is based on violations found during an
investigation conducted by designated representatives of the Indiana Department
of Environmental Management (“IDEM”) and the United States Army Corps of
Engineers (the “COE”).
During the investigation, it was determined that Kenrock
Inc. and Frank Lisa are in violation of IC 13-18-4-5, IC 13-30-2-1, 327
FINDINGS OF
VIOLATION
1.
The Complainant is the Commissioner of the
Indiana Department of Environmental Management, a department of the State of
2.
The Respondents are Kenrock
Inc. and Frank Lisa, (“Respondents”) which own and/or develop approximately 126
acres of property, including upland and forested wetland, bordering
3.
IDEM has jurisdiction over the parties and
subject matter of this action.
4.
Pursuant to 327 IAC 2-1.5-2(91)(A), “Waters of
the State” means either the accumulations of water, surface and underground,
natural or artificial or public and private; or a part of the accumulations of
water; that are wholly or partially within, flow through, or border upon
Indiana.
5.
Pursuant to 327 IAC 2-1.5-8(b)(1), all waters
within the Great Lakes system at all times and at all places, including waters
within 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 that
do any of the following:
a.
Will settle to form putrescent or otherwise
objectionable deposits.
b.
Are in amounts sufficient to be unsightly or
deleterious.
c.
Produce color, visible oil sheen, odor, or other
conditions in such degree as to create a nuisance.
d.
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.
e.
Are in amounts sufficient to be acutely toxic
to, or to otherwise severely injure or kill aquatic life, other animals,
plants, or humans.
6.
Pursuant to IC 13-30-2-1(1), a person may not
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.
7.
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 sections 1 and 3 of this chapter.
On or before
8.
Pursuant to 327 IAC 2-1.5-4(a), for all surface
waters of the state within the Great Lakes system, existing in-stream water
uses and the level of water quality necessary to protect existing uses shall be
maintained and protected. Where
designated uses of the water body are impaired, there shall be no lowering of
the water quality with respect to the pollutant or pollutants that are causing
the impairment.
The Respondents caused or contributed to cause earthen fill material, a
pollutant, to enter surface waters of the state at the Site, thus impairing
existing beneficial uses, in violation of 327 IAC 2-1.5-4(a). To date, the Respondents remain in violation
of 327 IAC 2-1.5-4(a).
9.
Pursuant to 327 IAC
The Respondents discharged earthen fill material, a pollutant, into a wetland,
which are waters of the state, at the Site.
This discharge was not authorized by an NPDES permit or a water quality
certification. Therefore, none of the
exceptions set forth in 327 IAC
10.
On April 12, 2004, a
Notice of Violation was issued, pursuant to IC 13-30-3-3, to the Respondents
for violations of IC 13-18-4-5, IC 13-30-2-1, 327 IAC
2-1.5-4(a), 327 IAC 2-1.5-8(b)(1), and 327 IAC 5-2-2. The Respondents received this Notice of
Violation on or about
11.
The Notice of Violation contained an offer to
enter into an Agreed Order containing actions required to correct the
violation.
12.
More than 60 days have elapsed since the
Respondents were offered the opportunity to enter into an Agreed Order.
13.
The Respondents have not entered into an Agreed
Order resolving this violation.
ORDER
1.
The Respondents shall immediately cease and
desist violations of IC 13-18-4-5, IC 13-30-2-1, 327 IAC 2-1.5-4(a), 327 IAC
2-1.5-8(b)(1), and 327 IAC
2.
Within 30 days of the Effective Date of this
Order, the Respondents shall develop and submit to IDEM a compliance plan
(“CP”) for IDEM’s approval that will describe the
actions the Respondents shall take to restore the forested wetlands at the
Site. The actions set forth in the CP
shall include, but not be limited to, the following:
a.
Development of a wetlands restoration plan that
will restore the Site, as delineated by the COE on
b.
Removal of unauthorized fill material, as
necessary, that washes into the existing forested wetland area(s);
c.
Stabilization and re-vegetation of any area(s)
disturbed during the forested wetland restoration project;
d.
Monitoring to ensure that the restoration
wetland meets all of the general conditions, success criteria, as outlined
below, for two consecutive years within five years of the creation of the
wetland; and
e.
The CP shall include a reasonable schedule and
timetable with specific commencement and completion milestone dates for each
action outlined in paragraph 3.A. through 3.D., above.
These actions, and all others set forth
in the CP, shall comply with the requirements set forth in Attachment A of this
Order. Attachment A is hereby
incorporated into this Order and deemed an enforceable part thereof.
3.
The CP is subject to the approval of IDEM. If IDEM deems the CP inadequate, a revised CP
shall be submitted within 15 days of receipt of notice from IDEM of the
inadequacies thereof. If, after
submission of the revised document, IDEM still finds the document to be
inadequate, then IDEM will request further modification of the CP as necessary
to meet IDEM’s requirements. If the subsequently submitted modification of
the CP does not meet IDEM’s approval, IDEM will
suggest specific modifications to be made to the CP and require re-submittal by
a specific date. If the IDEM-suggested
modifications are not incorporated into the CP by the Respondents (or an
alternative plan is not submitted by the Respondents) by the specified date or
are not approved by IDEM, the Respondents shall be subject to stipulated
penalties, as described below. The
Respondents, upon receipt of written notification from IDEM, shall immediately
implement the approved CP and adhere to the milestone dates therein.
4.
The approved CP shall be incorporated into the
Order and shall be deemed an enforceable part thereof. The Respondents shall submit documentation of
completion of approved CP milestones within 10 days after each milestone date.
5.
Upon implementation of the approved CP, the
Respondent is required to monitor the Site for a minimum of three years, to
ensure compliance with the success criteria set forth in Attachment A. The monitoring of the mitigation wetland
shall begin during the first growing season following the construction of the
mitigation area, and occur during the growing season (June – August), and
continue, once per year, until the mitigation wetland has achieved compliance
with the success criteria set forth in Attachment A. Following the third monitoring year, and upon
determination of compliance with success criteria, the Respondent shall be
given the opportunity to request, in writing, permission from IDEM to cease
monitoring.
6.
If the Respondent does not achieve compliance
with the success criteria within five years of completion of the approved CP,
the Respondent shall, within 60 days of becoming aware that compliance with the
success criteria cannot be achieved, develop and submit to IDEM for review and
approval an Action Plan (“AP”) that identifies the additional actions that the
Respondent will take to comply with the success criteria. The AP, if required, shall include a new
implementation and completion schedule, including specific milestone dates.
7.
The AP is subject to the approval of IDEM. If IDEM deems the plan inadequate, a revised
AP shall be submitted within 15 days of receipt of notice from IDEM of the
inadequacies thereof. If, after
submission of the revised AP, IDEM still finds the document to be inadequate,
then IDEM will request further modification of the AP as necessary to meet IDEM’s requirements.
If the subsequently submitted modification of the AP does not meet IDEM’s approval, IDEM will suggest specific modifications
to be made to the CP and require re-submittal by a specific date. The Respondent is required to incorporate the
IDEM-suggested modifications (or subsequent alternative plant that is acceptable
to IDEM) within the prescribed time frames.
The Respondent, upon receipt of written notification from IDEM, shall
immediately implement the approved AP and adhere to the milestone dates
therein.
8.
The AP, if required, shall, upon approval by
IDEM, be incorporated into this Order and shall be deemed an enforceable part
thereof.
9.
On or before December 31st of each
monitoring year, the Respondent shall submit to IDEM a wetland mitigation
monitoring report.
10.
All submittals required by this Order, unless notified
otherwise in writing, shall be sent to:
Ms. Aletha Lenahan,
Enforcement Case Manager
Indiana Department of Environmental Management
Office of Enforcement – Mail Code 60-02
100 N. Senate Avenue
Indianapolis, IN 46204-2251
And
Mr. Jason Randolph, Environmental Manager
Indiana Department of Environmental Management
Section 401 Water Quality Certification Program
Mail Code 65-42
100 N. Senate Avenue
Indianapolis, IN 46204-2251
11.
The Respondents shall pay a civil penalty of Thirty
One Thousand, Two Hundred Fifty Dollars ($31,250) for the violations cited above. This penalty shall be remitted to the
Department of Environmental Management within 30 days of the Effective Date of
this Order. Checks shall be made payable
to the Environmental Management Special Fund, with the Case Number
2003-12661-W, indicated on the check and mailed to:
Indiana Department of Environmental Management
Cashier’s Office – Mail Code 50-10C
100 N. Senate Avenue
Indianapolis, IN 46204-2251
12.
This Order shall apply to and be binding upon
the Respondents, their successors and assigns.
No change in ownership, corporate, or partnership status of the
Respondents 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 20th 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 of fact 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 |
Failure to properly submit a request for
review, before the 20th 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 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.
Dated at
Signed on
Thomas W.
Easterly
Commissioner
cc: Elkhart County Health Department
Indiana Department of Natural Resources
U.S. EPA, Region 5, Office of Water
U.S. Department of the Interior, Fish and Wildlife Service
U.S. Department of the Army, Corps of Engineers
www.state.in.us/idem
ATTACHMENT
A
COMPLIANCE
PLAN FOR:
KENROCK
INC. AND FRANK LISA, INDIVIDUAL
WETLAND
RESTORATION
REQUIREMENTS
I. Pursuant
to this Order, the Respondents shall meet the following wetland restoration
conditions:
1.
Deposit any dredged material in a contained
upland disposal area to prevent soil run-off to any water body, including
2.
Install erosion control methods prior to any
soil disturbance to prevent soil from leaving the construction site and/or
causing run-off to any water body, including
3.
Clearly mark the construction area shown in the
restoration plan, as required by Order Paragraph 3. Allow the Commissioner of IDEM or an
authorized representative of the Commissioner (including an authorized
contractor), upon the presentation of credentials:
(a)
to enter upon the Respondents' property;
(b)
to have access to and copy at reasonable times
any records that must be kept under the conditions of this Order;
(c)
to inspect, at reasonable times, any monitoring
or operational equipment or method; collection, treatment, pollution management
or discharge facility or device; practices required by this Order; and any
wetland restoration site; and
(d)
to sample or monitor any discharge of
pollutants or any restoration site.
II. Pursuant
to this Order, the Respondents shall meet the following wetland restoration
site specific conditions:
a. Within six
months of the Effective Date of this Order, the Respondents shall complete all
activities necessary to create the restoration wetland, unless IDEM grants a
written extension upon request. These
activities include excavation, grading, installation of hydrologic controls,
and planting specified hydrophytic vegetation
species.
b.
Clearly identify on-site all restoration
wetlands after construction of the restoration wetland. Install survey markers to identify the
boundaries of the wetlands. If the restoration
wetlands being created are adjacent to or near existing wetlands, then the
survey markers must distinguish the created wetland from the existing wetland.
c.
Annually monitor the compensatory restoration
wetland for a minimum of three years to determine whether it is achieving the
success criteria contained in this site specific restoration project and
complete corrective actions as necessary to ensure this restoration wetland
project will achieve the success within the required period. These corrective actions may include
additional grading, plantings, or relocation of the restoration wetland, along
with extended monitoring. Describe in
the monitoring reports any corrective actions taken to ensure success of the
restoration site.
d.
Submit annual monitoring reports of the
compensatory restoration wetland to IDEM at the addresses located in Order
Paragraph 9 below, by December 31st of each year until the
Respondents are released from monitoring by IDEM. These reports shall contain information
concerning what steps the Respondents have taken to create the compensatory
restoration wetland and whether the wetland is achieving each of the success
criteria outlined in this Order. The
reports shall include the following:
i.
As-built plans (in the first annual monitoring
report).
ii. Discussion of
hydrology at the restoration site.
iii. Discussion of
plant community development at the restoration site.
iv.
Discussion of methods or means used to determine
compliance with the success criteria.
v.
Photographs representative of the restoration
site and sampling points.
vi.
Identification of any problems with meeting the
success criteria.
vii.
Recommendations for correcting any problems
identified.
viii.
Wetland delineation for the restoration wetland
in the final report.
e.
Monitor the restoration wetland for a minimum
period of three years. In order to be
released from monitoring, the Respondents must demonstrate to IDEM, through the
monitoring reports, that the success criteria specified in the CP have been met
for two consecutive years within a five year period. Once the Respondents believe that this
requirement has been met, they may submit a proposed final monitoring report to
IDEM and suspend monitoring unless notified otherwise by IDEM. If IDEM determines that the success criteria
have not been met, then the Respondents shall resume monitoring. If IDEM confirms that the success criteria
have been met, then the Respondents may permanently discontinue monitoring
after it receives written notification of this determination from IDEM.
f.
Include a delineation of all restoration
wetlands in the final monitoring report.
The delineation must be conducted on-site using the hydrology and
vegetation parameters from the United States Army COE of Engineers Wetland Delineation
Manual, Technical Report Y-87-1 (January 1987).
The delineation report must include but not be limited to data sheets
and a survey, map or drawing with area measurements (in acres) of all
restoration wetland boundaries.
g.
Ensure that the restoration wetland meets all of
the following success criteria for two consecutive years within five years of
the creation of the wetland:
i. Greater than 50% of the
dominant vegetation species must be classified as hydrophytic.
ii.
The hydrology at the restoration site must meet the wetland
hydrology criteria contained in the United States Army COE of Engineers Wetland
Delineation Manual, Technical Report Y-87-1 (January, 1987).
iii.
The wetland vegetation total percent cover must be at least 70%.
iv.
The wetland restoration is free of the following exotic species: Lythrum salicaria (purple
loosestrife), Phragmites australis
(common reed), and Myriophyllum spicatum
(water milfoil).
v.
No more than 10% of the surface area coverage of the emergent zone
of the restoration wetland may be open water, bare ground, or a combination of
the two. Open water and bare ground are
defined as areas with less than 10% vegetative cover.
vi.
The restoration wetland consists of 0.5 acres of forested wetland.
III.
Pursuant to
this Order, the Respondents shall meet the following wetland restoration
success criteria:
(1)
Greater than 50% of the dominant vegetation species must be
classified as hydrophytic.
(2)
The hydrology at the restoration site must meet the wetland
hydrology criteria contained in the United States Army COE of Engineers Wetland
Delineation Manual, Technical Report Y-87-1 (January, 1987).
(3)
The wetland vegetation total percent cover must be at least 70%.
(4)
The restoration wetland is free of the following exotic species: Lythrum salicaria (purple
loosestrife), Phragmites australis
(common reed), and Myriophyllum spicatum
(water milfoil).
(5)
No more than 10% of the surface area coverage of the emergent zone
of the restoration wetland may be open water, bare ground, or a combination of
the two.
(6)
Open water and bare ground are defined as areas with less than 10%
vegetative cover.