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STATE
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BEFORE THE INDIANA DEPARTMENT |
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COMMISSIONER OF THE DEPARTMENT Complainant, v. NORTHWEST HAMILTON LAKE, 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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Via Certified Mail #: |
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To: |
Mr.
Thomas Flegal Project
Site Owner Northwest
Hamilton Lake Dev. Co., LLC 6340
South 300 East |
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Mr.
Kent Miller Registered
Agent Northwest
Hamilton Lake Dev. Co., LLC |
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This
Notice and Order of the Commissioner of the Department of Environmental
Management ("Order") is issued against Northwest Hamilton Lake
Development Co., LLC (“Respondent”) for violation of the Indiana Environmental
Management Act. This Order is issued
pursuant to 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 the Indiana Department
of Environmental Management (“IDEM”). The investigation determined that the
Respondent violated Indiana Code (“IC”) 13-18-4-5, IC 13-30-2-1, 327 Indiana
Administrative Code (“IAC”) 2-1-6, 327 IAC 15-2-5, 327 IAC 15-5-5, 327 IAC
15-5-6, and 327 IAC 15-5-7.
FINDING OF
VIOLATION
1.
Respondent is Northwest Hamilton Lake Development Company,
LLC (“Respondent”), which owns and develops residential subdivisions known as
Crystal Bay (also known as “Phase I”) and Crystal Cove (also known as “Phase II”),
located at the east side of County Road 300 East, south of Lane 280 in
Hamilton, Steuben County, Indiana (“Site”).
2.
Pursuant to 327 IAC 15-2-5(a), any person subject to the
requirements of 327 IAC 15 shall submit a Notice of Intent (“NOI”) letter that
complies with 327 IAC 15-2-5, 327 IAC 15-3, and the additional requirements in
the applicable permit rule.
3.
Pursuant to 327 IAC 15-5-6, all information required under
327 IAC 15-3 and 327 IAC 15-5-5, specifically a NOI letter and all related
information, shall be submitted to the commissioner prior to the initiation of
land disturbing activities. Respondent
failed to submit a NOI letter for Crystal Cove prior to initiating land
disturbing activities at the Site on or about December 2002 in violation of 327
IAC 15-5-6 and 327 IAC 15-2-5(a).
4.
Pursuant to 327 IAC 15-5-7(a), the operator shall develop an
erosion control plan (also known as an erosion and sediment control plan or “ESCP”)
in accordance with the requirements under 327 IAC 15-5-7. The ESCP must assure that erosion control
measures are implemented and maintained, and that off-site sedimentation does
not occur during the period of construction activity at a site.
5.
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 established by the department in
guidance documents similar to, or as effective as, those outlined in the Indiana Stormwater Quality Manual from
the Division of Soil Conservation of the Indiana Department of Natural
Resources (“IDNR”), and the Field Office
Technical Guide from the Natural Resources Conservation Service.
6.
Pursuant to 327 IAC 15-5-5(4), the NOI letter must include a
written certification by the operator that the erosion control measures in the
ESCP comply with 327 IAC 15-5-7 and, in addition, that the applicable state,
county, or local erosion control authority and the soil and water conservation
district office have been sent a copy of the ESCP for review.
7.
Respondent failed to submit an ESCP for Crystal Cove to the
IDNR or to the Steuben County Soil and Water Conservation District (“SWCD”)
prior to initiating land disturbing activities on or about December 2002 in
violation of 327 IAC 15-5-7(a) and (d), 327 IAC 15-5-5(4), and 327 IAC 15-5-6.
8.
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 from 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
passes 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.
9.
As documented during Site inspections at
10.
Pursuant to 327 IAC 2-1-6(a), all waters at all times and at
all places, 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; and
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.
11.
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.
12.
Pursuant to IC 13-30-2-1, no person may 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 or into any publicly
owned treatment works in any form which causes or would cause pollution which
violates or would violate rules, standards, or discharge or emission
requirements adopted by the appropriate board.
13.
Site inspections conducted by representatives of IDNR during
the period of construction activity and/or active land disturbing activity,
revealed that the Respondent caused or allowed the discharge of sediment into
Hamilton Lake and adjoining wetlands area, waters of the state, that settled to
form objectionable deposits and/or in an amount sufficient to be unsightly or
deleterious, in a manner that caused a polluted condition, in violation of IC
13-18-4-5, IC 13-30-2-1, and 327 IAC 2-1-6(a).
14.
On February 3, 2006, a Notice of Violation was issued,
pursuant to IC 13-30-3-3 to the Respondent for violation of IC 13-18-4-5, IC
13-30-2-1, 327 IAC 2-1-6, 327 IAC 15-2-5, 327 IAC 15-5-5, 327 IAC 15-5-6, and 327
IAC 15-5-7. The Notice of Violation sent
via certified mail to Mr. Thomas Flegal was signed for on February 8, 2006. The Notice of Violation sent via certified
mail to Mr. Kent Miller was signed for on February 21, 2006.
15.
The Notice of Violation contained an offer to enter into an
Agreed Order containing actions required to correct the violation.
16.
More than sixty (60) days have elapsed since Respondent was
offered the opportunity to enter into an Agreed Order.
17.
The Respondent has not entered into an Agreed Order
resolving this violation.
ORDER
1.
The Respondent shall immediately cease and desist violation
of IC 13-18-4-5, IC 13-30-2-1, 327 IAC 2-1-6, 327 IAC 15-2-5, 327 IAC 15-5-5,
327 IAC 15-5-6, and 327 IAC 15-5-7.
2.
For purposes of this Order, a construction plan (“CP”) is
defined as a representation of a project site and all activities associated
with the project. The plan includes the
location of the project site, buildings and other infrastructure, grading activities,
schedules for implementation, and other pertinent information related to the
project site. A storm water pollution
prevention plan (“SWPPP”) is a part of the construction plan, pursuant to 327
IAC 15-5-4(5) and 327 IAC 15-5-4(35).
3.
The Respondent shall, immediately upon the Effective Date,
implement the erosion and sediment control measures contained in the approved
CP for the Site and any other erosion and sediment control measures necessary
to:
a.
ensure compliance with the requirements of 327 IAC 15-5-7
and 327 IAC 2-1-6(a); 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 CP
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 or the local SWCD 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 (1) year, or until
the project termination conditions of 327 IAC 15-5-8 have been met at the site
and a Notice of Termination (“NOT”) has been submitted to IDEM and accepted by
it.
4.
The Respondent shall, upon the Effective Date, implement a
self-monitoring program as required by 327 IAC 15-5-7(18), including assuring
that a trained individual performs a written evaluation of the project site by
the end of the next business day following each measurable storm event and at a
minimum of one time per week, in order to determine whether the erosion and
sediment controls 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.
For the purposes of this
Order, a “measurable storm event” is defined as a precipitation event that
results in a total measured precipitation accumulation equal to or greater than
0.5 inches of rainfall.
5.
In the event that deficiencies are found during the
inspections of the Site conducted pursuant to Order Paragraph No. 4, 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 No. 4 and corrective actions taken pursuant to
Order Paragraph No. 5. The records shall
include, but not necessarily be limited to:
a.
the date and time of the inspection;
b.
the weather conditions at the time of the inspection;
c.
the name of the individual conducting the inspection;
d.
a description of the 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 make the records required pursuant to
Order Paragraph No. 6 available for inspection and copying by representatives
of IDEM, and the SWCD.
8.
The Respondent shall, within fifteen (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 thirty (30) days of the Effective
Date, submit to IDEM a copy of the notification required pursuant to Order
Paragraph No. 8 and a statement certifying that the notification was provided
to all parties with access to the Site.
10.
The requirements of Order Paragraph Nos. 3, 4, 5, 6, 7 and 8
shall remain in effect until the earlier of :
a.
Respondent submits to IDEM a Notification of Termination of
construction activity pursuant to 327 IAC 15-5-11 for the Site; or
b.
one (1) year has passed from the Effective Date of this
Order,
and a designated representative
of IDEM approves the adequacy of the remaining permanent erosion control
measures in accordance with 327 IAC 15-5-8(b).
11.
All submittals required by this Commissioner's Order, unless
notified otherwise in writing, shall be sent to:
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Christina Sorensen, Enforcement Case Manager |
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Indiana Department of Environmental Management |
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Office of Enforcement – Mail Code 60-02 |
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12.
The Respondent shall pay a civil penalty of Fifty-Five
Thousand Five Hundred Dollars ($55,500) for violation of IC 13-18-4-5, IC
13-30-2-1, 327 IAC 2-1-6, 327 IAC 15-2-5, 327 IAC 15-5-5, 327 IAC 15-5-6, and 327
IAC 15-5-7. 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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Indiana Department of Environmental Management |
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Cashier’s Office – Mail Code 50-10C |
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13.
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 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 |
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Office of Environmental Adjudication |
IDEM – Mail Code:
50-01 |
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Failure to properly submit a request for review,
before the twentieth (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:
a.
Name, address, and telephone number of each person filing
the petition.
b.
Identification of the interest of each petitioner in the
subject of the petition.
c.
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.
d.
Statement with particularity the legal issues proposed for
consideration in the proceedings.
The petition for administrative review should also
contain the following information:
a.
Identification of any persons represented by the person
making the request.
b.
Statement identifying the person against whom administrative
review is sought.
c.
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.
d.
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
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Date: |
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Signed September 29, 2006 |
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Thomas W. Easterly |
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cc: Steuben
County Health Department
Joseph Montel, Montel Law
Firm
http://www.in.gov/idem