NOTICE OF VIOLATION

Via Certified Mail # ___________________

Mr. Jerome Kerstiens, President

Kerstiens Corporation, Inc.

1345 Cobblestone Rd.

Jasper, IN 47546

Via Certified Mail # ___________________

Mr. Jerome Kerstiens, Registered Agent

Kerstiens Corporation, Inc.

215 Mill St.

P.O. Box 162

Jasper, IN 47546

Case No. 2002-11549-W

Based on investigations and subsequent record reviews by designated representatives of the Indiana Department of Environmental Management ("IDEM"), Kerstiens Corporation, Inc. ("Kerstiens"), owner and operator of Mill Creek Park I, a residential and commercial subdivision, located in Jasper, Dubois County, Indiana, was in violation of the following environmental rules and statutes:
  1. Pursuant to 327 IAC 15-5-5(4), the operator must certify that the erosion control measures in the erosion control plan, (also known as an erosion and sediment control plan or "ESCP") 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.

    2. 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 this section. 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.

    Based on inspections conducted by representatives of the Indiana Department of Natural Resources ("IDNR") and/or the Dubois County Soil and Water Conservation District ("SWCD"), Kerstiens failed to implement the ESCP, and therefore failed to assure that the erosion control measures were maintained and that off-site sedimentation did not occur, according to the approved ESCP at the Site during the period of construction activity and/or active land disturbing activity, in violation of 327 IAC 15-5-(4) and 327 IAC 15-5-7(a).

  2. 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. Sediment tracked from the site onto public or private roadways shall be minimized.

    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 activity at a site, all erosion control measures necessary to meet the requirements of 327 IAC 15-5-7 shall be maintained by the operator.

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 (now titled Indiana Stormwater Quality Manual) from the Division of Soil Conservation, IDNR and the Field Office Technical Guide from the Natural Resource Conservation Service ("NRCS").

Based on site visits and inspections conducted by representatives IDNR and/or the Dubois County SWCD, Kerstiens failed to assure that erosion control measures, according to the approved ESCP, were implemented and maintained at the Site and assure that off-site sedimentation did not occur during the period of construction activity and/or active land disturbing activity, in violation of 327 IAC 15-5-7(b), (c), and (d).

  1. Pursuant to 327 IAC 2-1-6(a)(1), 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:
    1. that will settle to form putrescent or otherwise objectionable deposits;
    2. that are in amounts sufficient to be unsightly or deleterious;
    3. that produce color, visible oil sheen, odor, or other conditions in such degree as to create a nuisance;

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.

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 pursuant to IC 13.

Site inspections conducted by representatives of IDNR and/or the Dubois County SWCD during the period of construction activity and/or active land disturbing activity, revealed that Kerstiens caused or allowed the discharge of sediment into the Mill Creek waterway, a water 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 327 IAC 2-1-6(a), a rule of the Water Pollution Control Board, and therefore also violated IC 13-18-4-5, and IC 13-30-2-1.

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 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 that may be relevant to the violations. In addition, as provided in IC 13-30-3-3, an alleged violator may enter into an Agreed Order without admitting that the violation occurred.

If settlement is not reached within 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 Ms. Stacie Tucker, Environmental Manager, at 317/234-0411, within 15 days after receipt of this Notice regarding your intent to settle this matter.

 

For the Commissioner:

 

Date: ________________________ ______________________________

Felicia A. Robinson

Deputy Commissioner

for Legal Affairs

 

Enclosure

cc: U.S. EPA, Region 5, Office of Water

Dubois County Soil and Water Conservation District

Lynn Miller, Indiana Department of Natural Resources

Michael Johnson, Indiana Department of Natural Resources

 

http://www.state.in.us/idem

 

bcc: Stacie Tucker, OE

OLC

OE E-File

Jay Davis, OWQ Rule 5 Compliance Evaluation Section

Don Daily, OWQ Compliance Evaluation Section

Ron Pearson, OWQ Inspection Section