STATE OF INDIANA    )            BEFORE THE INDIANA DEPARTMENT
                )    SS:        OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION    )    

COMMISSIONER OF THE                    )
DEPARTMENT OF ENVIRONMENTAL            )
MANAGEMENT,                        )
                                )    
        Complainant,                    )
                                )    
        vs.                        )    Cause No. B-2424
                                )
PELICAN COVE DEVELOPMENT CORPORATION,     )
                                )
        Respondent.                    )

VIA CERTIFIED MAIL No. VIA CERTIFIED MAIL No.

To:    Al Bayman, President        and to:        Marilyn Bayman, Secretary and
    Pelican Cove Development Corp.             Registered Agent
    51245 Lilac Road                    Pelican Cove Development Corp.
    South Bend, Indiana 46628                51245 Lilac Road
                                South Bend, Indiana 46628

    This Notice and Order of the Commissioner of the Department of Environmental Management is issued to the Respondent, Pelican Cove Development Corporation, Al Bayman, President, for violation of the Indiana Administrative Code (IAC). This Order is issued pursuant to IC 13-30-3-4, IC 13-30-3-10 and 11 and IC 4-21.5-3-6 and is based on violations found during an investigation conducted by the Indiana Department of Natural Resources (IDNR), and Indiana Department of Environmental Management (IDEM). During that investigation it was determined that the Respondent was in violation of 327 IAC 15, as specified below:

    (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.

2.    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."

3.    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."

4.    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."

5.    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..."

6.    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.

7.    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 a 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."

8.    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).

9.    The Respondent's violations of the above noted rule and statutes are based on information contained in the Notice of Intent (NOI) letter and the Erosion and Sediment Control Plan that were submitted for the Villas at Sandalwood development (the Development) located in St. Joseph County, Indiana, and also on-site visits and On-Site Evaluations for Erosion and Sediment Control at the Development conducted by IDNR and St. Joseph County Soil and Water Conservation District, and other information sources. These documents indicate that the Respondent has violated the above noted rules and statutes as follows:

    A)    The Respondent violated provisions of 327 IAC 15-2 and 327 IAC 15-5, in that it did not submit an erosion control plan to the appropriate soil and water conservation district office for review or a NOI letter with necessary information to the Commissioner prior to the initiation of land disturbing activities at the Villas at Sandalwood development.

    B)    The Respondent violated provisions of 327 IAC 15-5, in that during the period when active land disturbing activities occurred, it failed to effectively implement and maintain erosion control measures at the Subdivision thereby resulting in sediment leaving the site. It failed to keep public or private roadways clear of tracked sediment. It failed to appropriately incorporate erosion control measures into land disturbing activities. It also failed to provide protection for storm outlets and inlets. In all, seven separate on-site field inspections were conducted by IDNR and St. Joseph County Soil and Water Conservation District staffs on September 12, 1997, February 17, 1998, April 6, 1998, May 13, 1998, July 16, 1998, August 27, 1998, and September 23, 1998. Each of these inspections noted violations of the relevant erosion control requirements. Several of the inspections noted "excessive" erosion and sediment leaving the Respondent's site.

10.    On February 19, 1999, a Notice of Violation was issued, pursuant to IC 13-30-3-3 to the Respondent for violation of 327 IAC 15-2 and 327 IAC 15-5.

11.    The Notice of Violation contained an offer to enter into an Agreed Order containing actions required to correct the violation.

12.    More than sixty (60) days have elapsed since Respondent was offered the opportunity to enter into an Agreed Order.

13    The Respondent has not entered into an Agreed Order resolving this violation.

1.    The Respondent shall immediately cease and desist violation of 327 IAC 15-5-7.

2.    The Respondent shall immediately take appropriate steps at the Villas at Sandalwood development to comply with 327 IAC 15-5-7, including implementing and maintaining appropriate erosion control measures necessary to detain sediment-laden water and to minimize off-site sedimentation.

3.    The Respondent shall pay a civil penalty of Thirteen Thousand, Five Hundred Dollars ($13,500) for the aforementioned violations. This penalty shall be remitted to the Department of Environmental Management within thirty (30) days of the effective date of this Order. The check shall be made payable to the Environmental Management Special Fund, with the Cause Number indicated on the check and mailed to Cashier, IDEM, P.O. Box 7060, Indianapolis, Indiana 46207-7060.

4.    This Order shall apply to and be binding upon the Respondent, its officers, directors, principals, agents, successors, subsidiaries, and assigns.

5.    The Respondent shall provide a copy of this Order, if in force, to any subsequent owners or successors before ownership rights are transferred. The Respondent shall ensure that all contractors, firms and other persons performing work under this Order comply with the terms of this 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 . Pursuant to IC 4-21.5-3-7, 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:

Director            Commissioner
Office of Environmental Adjudication     Department of Environmental Management
ISTA Building, Suite 618    IGCN, 100 North Senate
150 West Market Street    P.O. Box 6015
Indianapolis, IN 46204    Indianapolis, IN 46206-6015

    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 pursuant to IC 4-21.5-3-7 and your right to a judicial review of the Order pursuant to IC 4-21.5-5-4. The request for review must contain the following information:

    1.    The 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.    A 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.    A statement with particularity concerning 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 pursuant to IC 4-21.5-3-15.

    2.    A 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.    A 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 Indianapolis, Indiana, this day of , 1999.

                ____Signed 9/3/99__________
                Lori F. Kaplan
                Commissioner

cc:    Jim Filippini, US EPA, Region 5
    Howard County Health Department
    http://www.state.in.us/idem

Converted by Andrew Scriven