Department of Environmental Management

We make Indiana a cleaner, healthier place to live.

Frank O'Bannon 100 North Senate Avenue

Governor P.O. Box 6015

Indianapolis, Indiana 46206-6015

Lori F. Kaplan (317) 232-8603

Commissioner (800) 451-6027

 

NOTICE OF VIOLATION

Mr. Thomas K. McGowan, Registered Agent

Kite Greyhound, LLC

6610 N. Shadeland Avenue

Suite 200

Indianapolis, Indiana 46220

Case No. 2001-11105-W

Designated representatives of the Indiana Department of Environmental Management (IDEM), the Hamilton County Soil & Water Conservation District (SWCD), and the Indiana Department of Natural Resources (IDNR) have conducted a record review and on-site evaluations of the Lowes Home Improvement Center construction project located at 146th Street and State Road 431, between Carmel and Zionsville, Hamilton County, Indiana. Based on the record review conducted on December 26, 2001, Kite Greyhound, LLC, ("Kite") as owner, operator and developer of this area of expansion at the Lowes Home Improvement Center, (the "Site"), has violated the following environmental rules:

A. 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 general permit rule.

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.

On August 20, 2000, IDEM received Kite's original NOI. The construction project was to commence in September 2000 and be completed by spring 2001. On August 21, 2000, IDEM sent Kite a notice of deficiency (NOD).

On March 8, 2001, IDEM received the information requested in the NOD dated August 20, 2000. Kite failed to timely submit a complete NOI letter prior to initiating land disturbing activities at the Site on or about September 2000, in violation of 327 IAC 15-5-6.
  1. 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.

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 Handbook for Erosion Control in Developing Areas from the division of soil conservation, IDNR and the Field Office Technical Guide from the Natural Resource Conservation Service.

Pursuant to 327 IAC 15-5-5(4), the operator must certify that the erosion control measures in the erosion control plan comply with applicable state, county, or local erosion control requirements; the erosion control measures will be implemented in accordance with the plan; and 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.

The erosion and sediment control plan (ESCP) for the Site was not approved by IDNR or the Hamilton County Soil & Water Conservation District (SWCD), prior to commencing land disturbing activities. IDNR reviewed Kite’s ESCP and approved the ESCP on March 16, 2001. Kite’s failure to receive approval of its ESCP prior to initiation of land disturbing activities at the Site is in violation of 327 IAC 15-5-7(a) and (d), and 327 IAC 15-5-5(4).

C. 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:
    1. Sediment-laden water shall be detained on-site by erosion control practices that minimize sedimentation in the receiving stream.
    2. Appropriate measures shall be taken to minimize or eliminate wastes or unused building materials being carried from the site by run-off.
    3. All on-site storm drains shall be protected against sedimentation by appropriate and acceptable methods.

    4. Public and private roadways shall be kept clear of accumulated sediment.

    5. All on-site storm drains shall be protected against sedimentation by appropriate and acceptable methods.

    6. 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.
    7. 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.

Pursuant to 327 IAC 15-5-7(c), during the period of construction all erosion control measures necessary to meet the requirements of this rule shall be maintained by the operator.

Based on on-site evaluations conducted by IDNR, Kite failed to assure that erosion control measures were implemented and maintained at the Site to assure that off-site sedimentation did not occur during the period of construction activity from September 2000 to December 2001. Specifically, rock check dams were not properly installed; silt fences were installed but not maintained; storm drain inlets were inadequately protected; conveyance channels were not stabilized or protected; areas at the Site needed seeding to stabilize soil; sediment was observed leaving the site; and sediment was found in a ditch 500 feet from Cool Creek, in violation of 327 IAC 15-5-7(b) and (c).

In accordance with IC 13-30-3-3, the Commissioner is required to notify an alleged violator in writing that a violation may exist and offer an opportunity to enter into an Agreed Order providing for the actions required to correct the violations and for the payment of a civil penalty. The Commissioner is not required to extend this offer for more than sixty (60) days.

Entering into an Agreed Order will prevent the issuance of a Notice and Order of the Commissioner under IC 13-30-3-4, or the filing of a civil court action under IC 13-14-2-6. IDEM encourages settlement by Agreed Order, thereby saving time and resources. Timely settlement by Agreed Order may result in a reduced civil penalty. Settlement discussions will also allow the opportunity to present any mitigating factors or other information that may be relevant. In addition, as provided in IC 13-30-3-3, an alleged violator may enter into an Agreed Order without admitting that the violations occurred.

If settlement is not reached within sixty (60) days of receipt of this Notice of Violation, the Commissioner may issue a Notice and Order containing the actions that must be taken to achieve compliance, the required time frames, and an appropriate civil penalty. Pursuant to IC 13-30-4-1, the Commissioner may assess penalties of up to $25,000 per day for each violation.

Please contact Aletha Lenahan, Office of Enforcement Case Manager, at (317) 232-8407 within fifteen (15) days after receipt of this Notice regarding your intent to settle this matter.

 

For the Commissioner:

 

 

 

Date: February 7, 2002

Felicia A. Robinson

Deputy Commissioner

for Legal Affairs