STATE OF
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BEFORE
THE INDIANA DEPARTMENT
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OF ENVIRONMENTAL
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COMMISSIONER OF THE INDIANA DEPARTMENT OF
ENVIRONMENTAL |
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MANAGEMENT, |
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Complainant, |
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v. |
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CASE NO. 2003-13566-W |
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JOHN ANEVSKI, OWNER, |
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ANEVSKI COMMERCIAL DEVELOPMENT, |
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A.K.A. J.A. DEVELOPMENT, D.B.A. |
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ANEVSKI ROUGH GRADING, and |
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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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To: |
Mr.
John Anevski, J.A.
Development |
This
Notice and Order of the Commissioner of the Indiana Department of Environmental
Management ("Order") is issued against John Anevski, owner of Anevski
Commercial Development, a/k/a J.A. Development, d/b/a Anevski Rough Grading
Project, and JTS Plaza Expansion Project (“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 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, as specified below:
FINDINGS
1. The Complainant is the Commissioner of IDEM, a department of
the State of
2 The Respondent owns Anevski Commercial Development, a/k/a. J.A.
Development, and is the owner, operator, and developer of project areas named
the Anevski Rough Grading Project, located behind
3. IDEM has jurisdiction over the
parties and subject matter of this action.
4.
All references in these Findings to 327 IAC 15-5
and its various subparts are to the version in effect prior to the rule
change on November 26, 2003.
5. Pursuant to 327 IAC 15-5-2, the
requirements of 327 IAC 15-5 apply to all persons who met the following
criteria:
A. do not obtain an individual National
Pollutant Discharge Elimination (“NPDES”) Permit under 327 IAC 15-2-6;
B. meet the general permit rule
applicability requirements under 327 IAC 15-2-3; and
C. are involved in construction activity
that includes clearing, grading, excavation, and other land disturbing
activities, except operations that result in the disturbance of less than five
acres of total land are and that are not part of a larger common plan of
development or sale.
6. The Respondent’s
Site is subject to 327 IAC 15-5 because:
A. the Respondent did not obtain an
individual NPDES permit for the Site under 327 IAC 15-2-6;
B. the Respondent meets the general permit
rule applicability requirements under 327 IAC 15-2-3; and
C. the Respondent’s projects at the Site
involve construction activity that include clearing, grading, excavation, and
other land disturbing activities that disturbed more than five acres of land
and/or are part of a larger common plan of development.
Count 1: Anevski
Rough Grading Project
7. Pursuant to 327 IAC 15-5-7(d), 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 department in guidance documents similar to, or as effective
as, those outlined in the Indiana Stormwater Quality Manual
and the Field Office Technical Guide from the Natural Resource Conservation
Service.
8. Based on site inspections conducted by IDEM representatives at the Anevski Rough Grading project on December 22,
2003, March 18, 2004, and August 19, 2004, the Respondent failed to implement
and maintain erosion control measures that met the
design criteria, standards, and specifications for erosion control measures
established by the department in guidance documents, in violation of 327 IAC
15-5-7(d).
9. 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.
* * * *
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.
10. Based on site inspections conducted by IDEM representatives at the Anevski Rough Grading project on December 22, 2003, March 18, 2004, and August 19, 2004,
the Respondent failed to detain sediment-laden water at the Rough Grading
Project by erosion control practices that minimize sedimentation in the
receiving stream and failed to control run-off from a disturbed area by
appropriate vegetative practices and/or the implementation of an erosion
control plan that includes appropriate erosion control measures, in violation
of 327 IAC 15-5-7(b).
11. 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.
12. Based on site visits and inspections
conducted by IDEM representatives at the Anevski Rough Grading project
on June 12, 2003, December 22, 2003, March 18, 2004, and August 19, 2004 the Respondent failed to assure that erosion control
measures necessary to meet the requirements of 327 IAC 15-5 were implemented
and maintained, in violation of 327 IAC 15-5-7(c).
Count 2:
13. Paragraphs 5, 7, and
9 above are hereby incorporated by reference.
14. Based on a site inspection conducted by IDEM representatives at the JTS Plaza Expansion Project on August 19,
2004, the Respondent failed to implement and maintain erosion control measures
that met the design criteria, standards, and
specifications for erosion control measures established by the department in
guidance documents, in violation of 327 IAC 15-5-7(d).
15. Based on site inspections conducted by IDEM representatives at the JTS Plaza Expansion Project on March 18, 2004, and August 19, 2004, the Respondent
failed to detain sediment-laden water at the JTS Plaza Expansion Project by
erosion control practices that minimize sedimentation in the receiving stream
and failed to control run-off from a disturbed area by appropriate vegetative
practices and/or the implementation of an erosion control plan that includes
appropriate erosion control measures, in violation of 327 IAC 15-5-7(b).
16. Based on site visits and inspections conducted by IDEM representatives
at the JTS Plaza Expansion Project on March 18, 2004, and August 19, 2004, the Respondent failed to assure that erosion control
measures necessary to meet the requirements of 327 IAC 15-5 were implemented
and maintained, in violation of 327 IAC 15-5-7(c).
17. On February 18, 2005, IDEM issued an Amended Notice of
Violation, pursuant to IC 13-30-3-3, to the Respondent.
18. The Amended Notice of Violation contained an offer to enter
into an Agreed Order in compliance with IC 13-30-3-3. In addition, IDEM provided Respondent with a
proposed Agreed Order.
19.
More than sixty (60) days have elapsed since the Respondent
was offered the opportunity to enter into an Agreed Order.
20. The Respondent has not entered into an
Agreed Order resolving the violations cited above.
ORDER
1.
The Respondent shall attain and maintain compliance with the
applicable provisions of 327 IAC 15-5-.
2.
The Respondent shall, within thirty (30) days after the
Effective Date of this Order, submit a new Notice of Intent (NOI) and
construction plans (CP) to the reviewing agency for any future or additional
development work to be done beyond areas covered under the current plan. The Respondent shall implement the erosion
and sediment control measures contained in the any ESCP revisions for the Site
and any other necessary erosion and sediment control measures required by
Dearborn County Soil and Water Conservation District (SWCD) to:
a.
ensure compliance with the requirements of 327 IAC
15-5-7; and
b.
prevent sediment from leaving the site and entering or
threatening to enter waters of the
state.
This effort should include basin outlets identified in the on-site
evaluations in accordance with the ESCP and the methods outlined in the Indiana
Stormwater Quality Manual. These
measures shall be adequate in size and location to control the area of run-off
and to prevent off-site sedimentation. Respondent
will be deemed to have satisfied the requirements of this paragraph when IDEM
verifies that adequate vegetative cover has been established and/or that appropriate erosion control
measures have been put into place, and Respondent has no “unsatisfactory”
ratings in inspections from IDEM or the local SWCD for one year.
3.
The
Respondent shall, upon the Effective Date, inspect the Site at a minimum
frequency of twice-per-month and immediately after all rainfall events in order
to determine whether the erosion and sediment control measures are:
a. properly
installed and maintained; and
b. adequate to ensure compliance with the requirements of 327
IAC 15-5-7 and to prevent sediment from leaving the site and entering or
threatening to enter waters of the state.
4.
For the purposes of this Agreed Order, a “rainfall event” is
defined as any precipitation or precipitation runoff event that is equal to or
greater than 0.5 inches of precipitation.
5.
In the event that deficiencies are found during the
inspections of the Site conducted either by IDEM or the Dearborn County SWCD or
pursuant to Order Paragraph 3 above, the Respondent shall immediately take all
actions necessary to correct the deficiencies. Such actions may include, but
are not necessarily limited to, removal of accumulated sediment from behind
silt fences and storm inlets, assurance that conveyance channels and swales are
stabilized, and installation of additional erosion control measures if
determined necessary.
6.
The Respondent shall maintain records of the inspections
conducted pursuant to Order Paragraph 3 above and corrective actions taken
pursuant to Order Paragraph 5 above. The records shall include, but not
necessarily be limited to:
a.
the date and time of inspection;
b.
the weather conditions at the time of the inspection;
c.
the name of the individual conducting the inspection;
d.
a description of observations made during the inspection,
specifically including a description of any deficiencies that were found; and
e.
a description of the corrective actions taken as a result of
deficiencies found during the inspection.
7.
The Respondent shall maintain the records
required pursuant to Order Paragraph 6 above at the Site, and shall make such
records available for inspection and copying by representatives of IDEM, or the
Dearborn County SWCD.
8.
The Respondent shall, within 15 days of
the Effective Date, provide written notification to all parties with access to
the Site, including contractors and subcontractors, of the requirements
contained in the approved ESCP.
9.
The Respondent shall, within 30 days of
the Effective Date, submit to IDEM a copy of the notification required pursuant
to Order Paragraph 8 above and a statement certifying that the notification was
provided to all parties with access to the Site.
10.
The requirements of Paragraphs 1-9 above
shall remain in effect until Respondent submits notification of termination of
new construction activity pursuant to 327 IAC 15-5-11 for the Site and a
representative of IDEM approves the adequacy of the remaining permanent erosion
control measures in accordance with 327 IAC 15-5-8(b); or one year has passed
from the Effective Date of this Order, and the Respondent is in compliance with
the terms of this Order (as determined by a representative of IDEM).
11.
All submittals required by this Order,
unless notified otherwise in writing, shall be sent to:
Dave Knox,
Office of Enforcement
Indiana Department of
Environmental Management
Mail Code 60-02
12.
The Respondent shall pay a civil penalty of Seventeen
Thousand Five Hundred Dollars
($17,500) for the violations cited above.
13.
This penalty shall be remitted to the Department of
Environmental Management within thirty (30) days of the Effective Date of this
Order. Checks shall be made payable to
the Environmental
Management Special Fund, with the Case Number indicated on the checks
and mailed to:
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IDEM |
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Cashier’s Office |
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Mail Code 50-10C |
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14.
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
twenty (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:
Director
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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.
Dated
at
Signed
on May 9, 2006
Thomas W. Easterly
Commissioner
cc: U.S. EPA, Region 5, Office of Water